QUESADA PLAINTIFFS’ POST-TRIAL BRIEF - · PDF fileQUESADA PLAINTIFFS’ POST-TRIAL...

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

SHANNON PEREZ, et al., Plaintiffs, v. GREG ABBOTT, et al., Defendants.

CIVIL ACTION NO. SA-11-CA-360-OLG-JES-XR [Lead Case]

QUESADA PLAINTIFFS’ POST-TRIAL BRIEF

Mark P. Gaber (admitted pro hac vice) 1316 13th Street NW, #1 Washington, DC 20005 (715) 482-4066 Jessica Ring Amunson (admitted pro hac vice) Jenner & Block LLP 1099 New York Avenue NW, Ste. 900 Washington, DC 20001 (202) 639-6000 Donald H. Flanary, III Flanary Law Firm 1005 South Alamo San Antonio, TX 78210 (210) 738-8383

J. Gerald Hebert (admitted pro hac vice) J. Gerald Hebert, P.C. 191 Somervelle Street, #405 Alexandria, VA 22305 (703) 628-4673 Gerald H. Goldstein Goldstein, Goldstein & Hilley 310 S. St. Mary’s Street San Antonio, TX 78205 (210) 226-1463 Jesse Gaines P.O. Box 50093 Fort Worth, TX 76105 (817) 714-9988

Counsel for Quesada Plaintiffs

July 31, 2017

Case 5:11-cv-00360-OLG-JES-XR Document 1527 Filed 07/31/17 of 58

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................................................................................... ii INTRODUCTION ........................................................................................................................ 1

SUMMARY OF ARGUMENT .................................................................................................... 1 I. The Record Demonstrates, as a Matter of Fact, that the Legislature Purposefully

Discriminated in Considering and Enacting Plan C235. ........................................................ 4 A. The Legislature Knew this Court’s Interim Order Did Not Establish Plan C235’s

Legality and Its Purported Reliance on that Order Is Pretext. ........................................ 4 B. The Legislature Intentionally Discriminated by Readopting Features of the 2011 Plan

that the D.C. Court Had Specified as Evidence of Purposeful Discrimination. ........... 13 C. The Legislature Applied a Discriminatory Rule to Reject Amendments Proposing

Minority Coalition Districts Contrary to Fifth Circuit Precedent. ................................ 17 D. The Legislature Acted with Discriminatory Intent in Rejecting an Alternative Plan that

Would Remedy the Intentional Cracking of Minority Neighborhoods in DFW in Plan C235. ............................................................................................................................. 20

E. Application of the Arlington Heights Factors Demonstrates the Legislature Purposefully Discriminated in Enacting Plan C235. .................................................... 26

i. Discriminatory Impact .............................................................................................. 26 ii. Historical Background .............................................................................................. 28

iii.Sequence of Events and Procedural and Substantive Deviations ............................. 29 II. As a Matter of Law, the Discriminatory Intent Present in 2011 Infects the Offending

Characteristics of Plan C185 that Plan C235 Retained. ........................................................ 38 III. The Legislature’s Intentional Discrimination Had its Intended Effect. ................................ 41

IV. Section 2’s “Results” Prong Requires the Formation of an Additional Minority Coalition District in DFW. .................................................................................................................... 42

CONCLUSION ........................................................................................................................... 52 CERTIFICATE OF SERVICE ................................................................................................. 54

APPENDIX 1: QUESADA PLAINTIFFS’ ANSWERS TO CERTAIN QUESTIONS [ECF NO. 1494] POSED BY THREE-JUDGE PANEL


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TABLE OF AUTHORITIES

Cases: Page Abrams v. Johnson, 521 U.S. 74 (1997) ........................................................................................44

Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015) ......................... 24, App-6 Ballew v. Continental Airlines, Inc., 668 F.3d 777 (5th Cir. 2012) ...............................................18

Campos v. City of Baytown, 840 F.2d 1240 (5th Cir. 1988) ..........................................................18 City of Port Arthur v. United States, 459 U.S. 159 (1982) ............................................................38

Cooper v. Harris, 137 S. Ct. 1455 (2017) ........................................................................ 25, App-6 Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1998) .............................................................. 39, App-8

DTND Sierra Investments LLC v. Bank of Am., N.A., 871 F. Supp. 2d 567 (W.D. Tex. 2013) .....................................................................................18

Garrett v. Circuit City Stores, Inc., 449 F.3d 672 (5th Cir. 2006) ...........................................13, 18 Green v. Cnty. Sch. Bd., 391 U.S. 430 (1968) ...............................................................................38

Hunter v. Underwood, 471 U.S. 222 (1985) ..................................................................... 38, App-5 Johnson v. Governor of State of Fla., 405 F.3d 1214 (11th Cir. 2005) ............................ 39, App-8

LULAC v. Midland ISD, 812 F.2d 1494 (5th Cir. 1987), vacated on state law grounds, 829 F.2d 546 (5th Cir. 1987) .....................................................................................................18

LULAC v. Clements, 999 F.2d 831 (5th Cir. 1993) (en banc) ......................................................50 North Carolina State Conf. of NAACP v. McCrory, 831 F.3d 204 (4th Cir. 2016) ................ App-6

Northeastern Fla. Chapter of the Assoc. Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656 (1993) ..................................................................................................................39

Parham v. Hughes, 441 U.S. 347 (1979) .......................................................................................52 Personnel Administrator of Mass. v. Feeney, 442 U.S. 256 (1979) ..............................................38

Romer v. Evans, 517 U.S. 620 (1996) ............................................................................................20 Texas v. United States, 887 F. Supp. 2d 133(D.D.C. 2012), vacated on other grounds,

133 S. Ct. 2885 (2013) ......................................................................................14, 15, 24, 25, 31 Thornburg v. Gingles, 478 U.S. 30 (1986) ..............................................................................46, 49

United States v. Charleston Cty, S.C., 365 F.3d 341 (4th Cir. 2004) ............................................50 United States v. Fordice, 505 U.S. 717 (1992) ................................................................. 38, App-1

United States v. Virginia, 518 U.S. 515 (1996) .............................................................................38 Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2017) (en banc) ............................................5, 13, 33, 51

Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977) ..................................................................................................................26

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) ............................................................................31


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White v. Weiser, 412 US. 783 (1973) .................................................................................... App-10 Statutes

52 U.S.C. § 10304(a)-(c) ................................................................................................... 17, App-4 Other Authorities

Tex. Sec’y of State, Election Results, http://elections.sos.state.tx.us/elchist164_state.htm ..................................................................25


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INTRODUCTION

“[T]hat, I think, is what’s going to be asserted by our attorneys. I make no such assertion

on my own.” JX 26.2 at 8. This was Chairman Seliger’s defense of Plan C235’s legality on the

senate floor shortly before S.B. 4 was enacted as law.

This departure from the script advanced by the Attorney General’s office was telling;

Chairman Seliger was not describing a law intended to comply with the Voting Rights Act

(“VRA”) and the Constitution. Rather, he revealed the singular aim of S.B. 4: to execute a

litigation strategy to purposefully minimize the number of minority opportunity districts while

simultaneously seeking to evade liability for doing so.

The evidence on this point is compelling and illuminates a legislative process infected with

discriminatory intent. That is all the more remarkable in light of the blanket assertion of legislative

privilege by the key players, and by the failure of Defendants to produce responsive documents

from the redistricting chairmen until the eve of trial. This brief sets out the record and trial

evidence that proves this claim. In addition, the Quesada Plaintiffs attach as Exhibit 1 their

answers to a subset of the questions posed by the Court in its July 14, 2017 notice, ECF No. 1494.

SUMMARY OF ARGUMENT

The record shows that Plan C235 was enacted with a discriminatory purpose in violation

of the Fourteenth Amendment and Section 2 of the VRA. That discriminatory purpose exists both

as a matter of fact and law.

First, the factual record shows that the legislature’s purpose was to prevent the formation

of any additional minority opportunity districts because of race. Throughout these proceedings,

Defendants have told this Court a simplistic story: The legislature’s only intent was to dutifully

follow this Court’s “legal advice” that the interim plan complied with the law, and any contrary


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conclusion would be tantamount to accusing this Court of intentional discrimination in imposing

the interim plan. But that simple story is simply not true. The evidence shows that, as a factual

matter, the legislature did not think that this Court’s interim Order established the plan’s legality.

Rather, the record shows the legislature’s purported reliance on this Court’s interim Order was

pretext for its real goal: preventing the formation of any additional minority opportunity districts.

Not only did this Court warn the legislature its analysis was preliminary and subject to change, but

the Chief Legislative Counsel for the Texas Legislative Council (“TLC”) publicly advised the

legislature that this Court’s interim Order did not establish that Plan C235 complied with the VRA

or Constitution, that the alternative maps proposed by minority legislators illustrated the plans’

flaws, and that failing to adopt those amendments could signal unlawful intent.

Second, after this Court issued its interim Order, the D.C. Court specifically identified

purposefully discriminatory features, including the cracking of Southeast Arlington/Grand

Prairie—a large and fast-growing minority population area in Tarrant County—in the previous

plan, Plan C185. That area remained cracked in Plan C235, and the legislature reaffirmed that

cracking when it enacted S.B. 4 without uniting Southeast Arlington/Grand Prairie with its nearby

minority communities. By knowingly reaffirming a provision of law already deemed to have been

motivated by discriminatory intent, the legislature per se purposefully discriminated anew.

Third, the chairmen of the house and senate redistricting committees imposed a rule that

minority opportunity districts would only be created if they were “legally required,” while

simultaneously taking the position that African American/Hispanic coalition districts were not

“legally required” because, although they knew that binding Fifth Circuit precedent required them,

the Supreme Court had not yet decided the issue. The legislature thus acted with discriminatory

intent by purposefully placing a unique impediment on minority legislators and voters: they would


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have to wait until the Supreme Court had reason to decide the issue; binding circuit precedent

would not suffice. No other class of persons or legislators is denied the benefits of binding circuit

precedent.

Fourth, during the senate debate on S.B. 4, Chairman Seliger knowingly advanced an

incorrect legal standard for determining retrogression under Section 5 of the VRA as pretext to

reject an alternative plan that corrected the fracturing of minority voters in the Dallas-Fort Worth

area. This purposeful misuse of the VRA to harm minority voters further evinced a discriminatory

purpose in enacting Plan C235.

Fifth, the Arlington Heights factors support the conclusion that S.B. 4 was enacted with

discriminatory intent. Plan C235 has discriminatory effects, evidenced by the disparity between

the number of minority opportunity districts and the percentage of minority voters statewide.

Texas has a substantial contemporary and past history of official discrimination against minority

voters. The process by which Plan C235 was enacted was marked by substantial departures from

normal procedures. And contemporaneous statements of legislators further demonstrated a

discriminatory purpose.

Sixth, even if the 2013 legislature had not acted with independent discriminatory purpose,

the discriminatory purpose of the 2011 legislature is imputed as a matter of law to the enactment

of the discriminatory features that persist in Plan C235 from Plan C185. This Court had already

concluded that the DFW congressional districts in Plan C185 were drawn “with a motive to crack

and limit minority population within the Republican districts to curb the effect of continued

minority growth . . . to ensure that the minority populations would not grow sufficiently to control

the district for as long as possible.” Amended Order at 134, ECF No. 1390 (emphasis in original);

id. at 187 (Smith, J., dissenting) (agreeing with majority’s conclusion that DFW districts reflected


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intentional discrimination). Likewise, the D.C. Court specifically identified as evidence of

discriminatory purpose the cracking of neighborhoods in Plan C185 that remained cracked in Plan

C235. As a matter of law, voters whom the legislature targeted with this cracking in 2011 were

discriminated against a second time when the legislature reaffirmed that vote dilution in 2013.

Seventh, the record shows that all of this discrimination had its intended effect: minority

voters stranded in Anglo districts are harmed by residing in Anglo-dominated congressional

districts in which their representatives are not responsive to their unique needs.

Eighth, and finally, although this Court should rest its decision on the evidence of

intentional discrimination (both as constitutional and Section 2 violations), the “results” prong of

Section 2 of the VRA independently requires the formation of a third minority coalition district in

DFW.

I. The Record Demonstrates, as a Matter of Fact, that the Legislature Purposefully Discriminated in Considering and Enacting Plan C235.

A. The Legislature Knew this Court’s Interim Order Did Not Establish Plan

C235’s Legality and Its Purported Reliance on that Order Is Pretext.

Defendants’ entire case rests on a few cherry-picked sentences from this Court’s interim

Order to assert the legislature had no reason to think Plan C235 contained infirmities. But the

record shows that this purported reliance is pretext. In fact, the legislature knew that this Court’s

interim Order did not establish Plan C235’s legality. Not only did this Court say so in its interim

Order, but so did TLC’s Chief Legislative Counsel Jeff Archer.

First, this Court’s interim Order, on its face, precludes Defendants’ litigation position. The

Supreme Court’s decision in Perez was issued on January 20, 2012 and this Court had to act at

break-neck speed to permit the 2012 elections to move forward. The Court explained that it was

an “interim plan for the districts used to elect members in 2012” and that “[t]his interim map is not


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a final ruling on the merits of any claims asserted by the Plaintiffs.” Mar. 19, 2012 Order at 1,

ECF No. 691 (emphasis added). The Court further noted that “[b]oth the § 2 and Fourteenth

Amendment claims presented in this case involve difficult and unsettled legal issues as well as

numerous factual disputes. . . . Further, both the trial of these complex issues and the Court’s

analysis have been necessarily expedited and curtailed, rendering such a standard even more

difficult to apply.” Id. at 1-2. To punctuate the point, the Court stated that it “has attempted to

apply the standards set forth in Perry v. Perez, but emphasizes that it has been able to make only

preliminary conclusions that may be revised upon full analysis.” Id. at 2. The Court then explained

that the exigency of the calendar required quick imposition of a map, and thus it would adopt the

compromise plan (with minor revisions) offered by “[s]ome Plaintiffs and Intervenors.” Id.; see

also id. at 14. Defendants cannot plausibly contend that the Legislature had “no reason” to think

there might be a legal problem with Plan C235 in light of this Court’s clear warnings.

Second, the legislature knew that this Court’s interim Order did not establish Plan C235’s

compliance with the VRA and the Constitution because Chief Legislative Counsel Jeff Archer told

the house redistricting committee so in repeated, plain terms. A legislature’s decision to reject

amendments to a bill despite warnings from legal counsel that the legislation likely violates the

VRA is evidence of a discriminatory purpose. See Veasey v. Abbott, 830 F.3d 216, 239 (5th Cir.

2017) (en banc) (“Against a backdrop of warnings that SB 14 [Texas’s Photo ID law] would have

a disparate impact on minorities and would likely fail the (then extant) preclearance requirement,

amendment after amendment was rejected.”); id. at 262 (noting that counsel in Lieutenant

Governor’s office warned that Photo ID law was unlikely to obtain preclearance). Chairman Darby

characterized the Committee as having “relied heavily” upon Mr. Archer’s analysis, JX 17.3 at 8,


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and at trial, Chairman Darby acknowledged that Mr. Archer was counsel to both him and the

committee, 7/14/17 Trial Tr. (Vol. 5) at 1570.

The legislative record shows that Mr. Archer warned the House Select Redistricting

Committee that the interim Order did not establish Plan C235’s legality, that enacting the interim

plans would cause continued legal jeopardy for the State, and that the alternative plans and

amendments offered by minority legislators demonstrated the areas of potential legal liability.

Mr. Archer appeared for the first time at the June 12, 2013 hearing of the House Select

Redistricting Committee. JX 14.4 at 6. He spoke at length about the ramifications of this Court’s

interim Order imposing Plan C235, the D.C. Court’s opinion denying preclearance to Plan C185,

whether Plan C235 was vulnerable to challenge under the VRA or Constitution, and whether the

legislature could be found to have intentionally discriminated if it rejected the amendments

proposed by minority legislators aimed at addressing the pending legal claims. JX 14.4 at 6-19.

Mr. Archer explained that, in imposing Plan C235 on an interim basis, this Court was in “a

little bit tricky [position] because the Court had not made final determinations, . . . had not made

fact findings on every issue, had not thoroughly analyzed all the evidence but they had to make

some best case guesses based on the direction that the U.S. Supreme Court gave them.” Id. at 11.

Mr. Archer explained to the Committee that this Court “started with the legislatively enacted plan

in all three cases and addressed voting rights violations again on an interim and impromptu basis

almost, as if to say this is the best we can do now. We haven’t gotten to the bottom of things.” Id.

at 11-12. Moreover, Mr. Archer explained to the Committee that the interim plan Order was “not

a final ruling. These are preliminary determinations on the merits of Section 2. We’re only looking

at preclearance claims that are, quote, not insubstantial. In other words, [the Court] disclaimed


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making final determinations under the Voting Rights Act claims that the plaintiffs had brought.”

Id. at 12.

Mr. Archer continued, explaining to the Committee that this Court was clear that “these

are difficult and unsettled legal issues, there are numerous factual disputes and [the Court]

essentially made it explicitly clear that this was an interim plan to address basically first impression

of voting rights issues.” Id. at 12 (emphases added). Rep. Martinez-Fischer, a Hispanic member

of the Committee, asked Mr. Archer about whether some of this Court’s caution arose from the

fact the D.C. Court had not yet issued its decision. Id. at 14. Mr. Archer responded that “if the

District Court for the District of Columbia in the Section 5 preclearance litigation were to uphold

or object to limited parts of the district, that may change the ultimate determination.” Id. at 14-15;

see infra Part I.B (D.C. Court finds portion of then-CD 33—included in interim plan’s CD 6—

purposefully cracked from neighboring minority communities).

Turning to the relationship between this Court’s interim Order, the D.C. Court’s Order

denying preclearance to Plan C185, and the legislation being considered by the Committee, Mr.

Archer explained that adopting Plan C235 as a permanent plan would be a risky move. Rep.

Villalba, a Republican who later voted in favor of enacting Plan C235, see JX 17.1 at 1032, asked

the following question of Mr. Archer:

One of the questions that has come up over and over in our testimony is if we adopt interim plans in their current state, and now you’ve described for us that at least the Court perceives there’s additional work to be done, what is essentially the effect of doing that?

As a body, we adopt interim plans and, therefore, we give this plan the imprimatur of the people, right? We’re the people’s House and the Legislature will act and speak. If we do that and adopt these and, again, just hypothetically without any change whatsoever, it sounds to me like there’s going to be at least a delta between where the interim maps are and what needs to be completed work-wise and fact finding-wise to get them to where they would be in consonance with the existing


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holdings of the Supreme Court or the District Court. So, what is the legal effect or impact of doing that? Do we – since we – if we did that as a body, are we blessing those and somehow by having done that, are we advancing the ball or is there still work to be done?

JX 14.4 at 16-17.

Mr. Archer responded by explaining, inter alia, that “it’s clear that legislative enactment

of the plan gives it imprimatur of state law” and that “by enacting this plan or any other plan, to

some extent, the Court will give greater deference to the elements of that plan than perhaps it

would give to its own plan.” Id. at 17. But, Mr. Archer explained, “[t]hat doesn’t mean that the

parts of the plan that it ultimately finds deficient are any better because the Legislature adopted

them,” id. at 17, and although it removes from contention the legal claims addressed by the interim

map, “with respect to all the unaddressed issues and second guessing the Court’s own

determinations, you have – you haven’t removed legal challenges to any of the plan on a – on a

realistic level, that is,” id. at 18. Responding to a subsequent question from Rep. Villalba, Mr.

Archer explained that “challenges to both the Court drawn fixes as well as to the background

districts that were not changed in any of the plans will go forward” and “the parties to the case will

continue to press issues that the Court took a [s]tab at perhaps but didn’t fix.” Id. at 19.

Several days later, at the June 17th House committee hearing, Rep. Villalba had another

exchange with Mr. Archer about the legal ramifications of enacting the interim plan as the

permanent plan.

VILLALBA: I recognize that these maps were predicated upon previous maps that did have deficiencies. But wasn’t the San Antonio Court aware of most of those deficiencies? And wouldn’t – is it fair to say that they had made an attempt to cure the kinds of fragmentation and population deviation and other issues that we’re talking about curing today?


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ARCHER: I don’t think it would be fair to put those words in their mouths. I don’t – I think the fairest way of looking at it is they could go into a lot more issues than they already have –

JX 15.3 at 49. Later, Mr. Archer explained to the Committee, in response to questions from Rep.

Villalba, that this Court, in being tasked with imposing an interim map, faced “a tension there

between what they thought the Voting Rights Act required and what they thought the deference

they had to give until they were sure what the Voting Rights Act required.” Id. at 52 (emphasis

added).

Later in that hearing, Rep. Villalba attempted to backtrack from his previous admission

(made a week prior) that there was a “delta” between the interim map and what the law required,

asking Mr. Archer to confirm that the proposed modifications by minority legislators were merely

for policy, not legal reasons. Mr. Archer declined to do so.

VILLALBA: The question is if we make changes to these maps, they’re being made for policy purposes, not legal purposes?

ARCHER: I can’t say that. I think you can always reduce your legal risk by making changes based on assessment of any witnesses or information you have. So I think, again you have to assess what’s – what will happen and what will – what do we gain to lose or win by enacting Plan A or Plan B? And so I think it’s fair to say by enacting the Court-ordered plan, you’ve put to bed – as we discussed in Houston – those issues that the Court identified so far. But I don’t think you put the rest to bed. So if you do other thing –

VILLALBA: You don’t know what additional issues are? ARCHER: It’s hard to identify them, but I think that the maps people have

proposed show where the vulnerabilities are. VILLALBA: Thank you. ARCHER: I think Ms. Davis’ plan shows where some vulnerabilities are.

JX 15.3 at 56 (emphases added).1

1 This exchange between Rep. Villalba and Mr. Archer took place during the committee debate on H.B. 3—the bill to enact the interim state house plan—but Rep. Villalba’s question was clearly about “these maps” and thus this exchange applies equally to the state house and the congressional plans. Rep. Davis offered amendments to both the state house and congressional plans.


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After explaining to the Committee that the alternative proposals illustrated the legal

vulnerabilities, Mr. Archer advised the Committee that its failure to adopt any of those proposals

could be problematic: “Certainly the proposals that are made here will be at issue if the Legislature

does not adopt them. What the Court thinks of that remains to be seen.” Id. at 58-59; see also

7/14/17 Trial Tr. (Vol. 5) at 1575 (Q: “And Mr. Archer had warned the committee that rejecting

these alternatives could cause legal risk, didn’t he?”; Chairman Darby: “That was on the record.”);

Quesada-2017-73 (Defendants admitting that “in considering and enacting Plan C235 in June

2013, the Texas Legislature rejected all proposed modifications, including modifications proposed

by Hispanic and African-American legislators”).

At trial, Chairman Darby acknowledged being present for Mr. Archer’s testimony and

listening to it. See 7/14/17 Trial Tr. (Vol. 5) at 1570-71. Yet despite Mr. Archer’s warnings,

Chairman Darby did not budge in his public statements regarding the interim Order’s legal support

for enacting Plan C235 as the permanent redistricting plan. Indeed, the response by Chairmen

Darby and Seliger to the testimony of Mr. Archer and the public was to essentially plug their ears.

Nearly verbatim, five different times, Chairman Darby said he “believe[d] the [interim plans were]

legal and provide the voters with much needed stability going forward. If there is a legal deficiency

With respect to the congressional map, Rep. Davis offered H.B. 14 (Plan C236) during the committee debate. See JX 36. During the floor debate, Rep. Davis offered Amendment 5 (Plan C251). See JX 57. Both proposals added a third minority opportunity district in DFW, which Rep. Davis explained was necessary to “fully remedy the dilution in the DFW area.” JX 17.3 at S61. In response, Rep. Darby criticized the use of coalition districts and the splitting of Nueces County. Id. But this response says nothing about the need to remedy the intentional vote dilution through cracking and packing in DFW that persisted in Plan C235, which Rep. Davis’s proposals sought to remedy. The Court should thus reject the State’s post hoc litigation position that Rep. Davis’s plan might have exposed the State to a Shaw claim. See 7/15/17 Trial Tr. (Vol. 6) at 1790-91. The legislature never expressed that concern at the time, and visually the treatment of DFW in both Plans C236 and C251 is no worse than the appearance of CD 33 in Plan C235—and it is far less suspect than the appearance of CD 35 in Plan C235.


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in these maps, I want this committee to know about it and I want to correct it.” JX 10.4 at 26 (May

31, 2013 House Cmte. Hr’g); see also JX 11.4 at 6 (June 1, 2013 Hr’g); JX 12.4 at 5 (June 6, 2013

Hr’g); JX 13.4 at 12-13 (June 10, 2013 Hr’g); JX 14.4 at 39 (June 12, 2013 Hr’g). On the House

floor, on the day of passage, Chairman Darby said “it’s been my position from the start that these

maps are legal. And if somebody can demonstrate to me that a district has been drawn illegally,

and it can be fixed and changed, then I want to consider those amendments, and consider those

changes.” JX 17.3 at S5. Later, he said in an exchange with Rep. Chris Turner, “[d]o you recall,

specifically, my challenge to those present? Don’t just come and say you’re against the interim

maps—which is largely what a lot of folks did. Tell me how the maps are deficient, give me a

remedy to do that, and tell me why that remedy is necessary. And that’s what I asked the people

to do throughout the state, and we did not always hear that type of response. [They] just said,

we’re against the maps.” Id. at S54.

Of course, the onus is not on the public to explain to the legislature its legal obligations.

Nonetheless, many did. See, e.g., 7/13/17 Trial Tr. (Vol. 4) at 1226-28 (testimony of Comm’r Roy

Brooks regarding his statement to Dallas committee hearing); JX 28 at 90 (statement of Comm’r

Roy Brooks); see also ECF No. 1458-1 at 4 (collecting citations to legislative record of public

testimony regarding legal flaws of Plan C235).2 And Mr. Archer—the committee’s counsel who

testified in Chairman Darby’s presence—described in plain terms the flaw in relying upon the

2 Others submitted written testimony specifically directing the committees to the D.C. Court’s decision, as well as to the parties’ filings in this case explaining the remaining flaws. For example, the Texas NAACP attached plaintiffs’ briefing, ECF Nos. 739 and 744, which detail, inter alia, the remaining flaws in the DFW region resulting from intentional fracturing of minority communities. See JX 28 at 493; JX 29 at 126-28, 139; see also JX 28 at 79 (public submission noting intentional discrimination finding and how Plan C235 maintains fracturing of 44,000 African Americans outside CD 33.


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interim order and the fact that the alternative proposals illustrated the deficiencies.3 In any event,

in response to Chairman Darby during the floor debate, Reps. Chris Turner, Sylvester Turner, and

Trey Martinez-Fischer explained to Chairman Darby a number of deficiencies, including by page

number reference to the D.C. Court’s opinion. Id. at S54-57. Chairman Darby’s only response,

before calling a vote on the House plan, was “[w]ell, I will take your word for that.” Id. at S56.

Likewise, Chairman Seliger repeated the same mantra as Chairman Darby regardless of the

actual evidence elicited at the hearings. At the first hearing in April 2013, Chairman Seliger said

“[t]he interim plans remedied the legal flaws found by the federal court in Washington, DC.

Enacting these lawful and constitutional interim plans will help bring to a close this chapter of

redistricting. Enacting these plans will practically ensure that the ongoing litigation over Texas

redistricting plans will be brought to a swift end . . . .” JX 19.3 at § I, p. 13. During the floor

debate on the day of passage, Chairman Seliger again said: “[t]he interim plans remedy, we believe,

the legal flaws found in the federal court in D.C. . . . Enacting those plans will help bring a close

this chapter of redistricting. They will almost ensure that the ongoing litigation over the

redistricting plans will be brought to a swift end . . . .” JX 26.2 at 5. This was his script. When

challenged, however, he refused to repeat off-script his belief in the plans’ legality. See JX 26.2

at 8. These statements, in the face of plain text of the San Antonio and D.C. Courts’ orders; the

testimony of the Chief Legislative Counsel of the TLC, the minority legislators, and members of

3 Chairman Darby’s only response when confronted with the transcripts of Mr. Archer’s remarks was to claim that Mr. Archer’s public statements were not in the capacity as a lawyer to the Committee. 7/14/17 Trial Tr. (Vol. 5) at 1572. This is weak, at best. As Chairman Darby acknowledged, Mr. Archer was Chief Legislative Counsel and his and the committees’ lawyer. Id. That he was attempting to avoid waiving any attorney-client privilege with his public remarks does not alter the ramifications of those remarks, which on their face reflect legal advice and analysis. And if this is what Mr. Archer was willing to say publicly about Plan C235, one can only imagine what his private advice was.


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the public; and the false claim by Chairman Darby that no one had proposed a remedy to the

discriminatory features of the interim map; all defy credibility and bear the mark of purposeful

discrimination. Cf. Veasey, 830 F.3d at 237 (“When other legislators asked Senator Fraser

questions about the possible disparate impact of SB 14 [the photo ID bill], he simply replied ‘I am

not advised.’”).

B. The Legislature Intentionally Discriminated by Readopting Features of the 2011 Plan that the D.C. Court Had Specified as Evidence of Purposeful Discrimination.

The legislature intentionally discriminated by reaffirming features of Plan C235 that the

D.C. Court had specified as purposefully discriminatory. “When [the legislature] enacts laws, it

is presumed to be aware of all pertinent judgments and opinions of the judicial branch.” Garrett

v. Circuit City Stores, Inc., 449 F.3d 672, 677 (5th Cir. 2006); see 7/14/17 Trial Tr. (Vol. 5) at

1559 (Chairman Darby testifying that he had read the D.C. Court’s opinion prior to introducing

redistricting legislation in 2013). Although the D.C. Court’s August 2012 Order denied

preclearance to Plan C185 specifically, the D.C. Court’s Opinion, and attached Findings of Fact

and Conclusions of Law, specified a number of discriminatory—or potentially discriminatory—

features of Plan C185 that the legislature nonetheless readopted in Plan C235.4

First, the D.C. Court warned that it viewed the legislature’s decision not to include a

Hispanic ability district in DFW to be potentially motivated by intentional discrimination. The

D.C. Court explained that “[t]he parties have provided more evidence of discriminatory intent than

we have space, or need, to address here. Our silence on other arguments the parties raised, such

4 The pendency of the D.C. Court’s opinion was explained by this Court as a reason for much of its hesitancy—this Court specifically explained that “[g]iven the exigencies of time, this Court is unable to review the entire record from the D.C. trial, but has reviewed the post-trial briefing in order to determine whether the claims are ‘not insubstantial.’” ECF No. 691 at 14. Chairman Darby acknowledged this statement at trial. See 7/14/17 Trial Tr. (Vol. 5) at 1560.


14

as potential discriminatory intent in the selective drawing of CD 23 and failure to include a

Hispanic ability district in the Dallas-Fort Worth metroplex, reflects only this, and not our views

on the merits of these additional claims.” Texas v. United States, 887 F. Supp. 2d 133, 161 n.32

(D.D.C. 2012), vacated on other grounds, 133 S. Ct. 2885 (2013); Quesada-2017-74 at 42 n.32.

The legislature could not conceivably have read this and believed it had “no reason” to consider

altering Plan C235 to include a Hispanic ability district in DFW.5

Second, in addition to the broad warning quoted above about the evidence of

discrimination, the D.C. Court specifically concluded the legislature had purposefully

discriminated by cracking southeast Arlington/Grand Prairie in southeast Tarrant County from

surrounding minority communities—cracking that the legislature reaffirmed by enacting Plan

C235. In the section of its Findings of Fact and Conclusions of Law entitled “Discriminatory

Purpose in the Congressional Plan,” id. at 216 (emphasis in original), the D.C. Court cited the

configuration of then-CD 33 as an example of discriminatory purpose behind the plan.

In the Congressional Plan, this district includes all of Parker County and parts of Wise County, both of which are predominantly comprised of Anglo, suburban areas. Anglos make up 85.3% of the population in Parker County and the portion of Wise County included in CD 33 is 78.7% Anglo. In addition to those Anglo areas, CD 33 cuts into Tarrant County to include Tarrant County’s fast-growing minority populations. Representative Veasey testified that enacted CD 33 “goes around southwest—underneath southeast Ft. Worth in the unincorporated Tarrant County, and then moves into Arlington, into the heavily Anglo part of Arlington,

5 Texas’s only defense on this point at trial was to contend that it was not possible to draw a congressional district in DFW with a majority HCVAP. See, e.g., 7/13/17 Trial Tr. (Vol. 4) at 1233:8-10; 1235:1-10; 1236:23-1237:2 (Cross Examination of Comm’r Roy Brooks). But that is beside the point. The D.C. Court was commenting that there might be evidence that the legislature purposefully declined to draw a Hispanic ability district because of race. Whether or not such a district would be more or less than a majority HCVAP is irrelevant. The legislature’s obligation not to discriminate based on race is not confined to areas where a single race majority-minority district can be drawn. If a minority opportunity district—even one with less than a majority CVAP of a single minority group—is rejected because of race, the Constitution and Section 2 have been violated.


15

and then picks up the fast minority growth area in Southeast Tarrant County, Arlington—southeast Arlington-Grand Prairie area.”

Id. at 220, ¶ 112 (emphasis added); see also Quesada-2017-74 at 124. To illustrate, below is a

cropped portion of Quesada Exhibit 2017-17, a map produced by TLC of Plan C185 including

racial shading, with a blue box showing the area of then-CD 33 described by the D.C. Court as

cracked from other minority neighborhoods and included in Anglo-dominated CD 33.

See Quesada-2017-17 (blue box and circle added); see also Fact Findings, ECF No. 1340 at 245-

46, ¶ 316. At trial, Chairman Darby identified southeast Arlington on this exhibit and agreed that

in Plan C185, it was placed in then-CD 33. See 7/14/17 Trial Tr. (Vol. 5) at 1583:24-1584:3.

As the map below demonstrates, Plan C235 retains this intentionally discriminatory

feature. The same “southeast Arlington-Grand Prairie area” Texas, 887 F. Supp. 2d at 220, ¶ 112;

Quesada-2017-74 at 124, identified by the D.C. Court remains cracked from other minority

neighborhoods; this time it is just included in a different Anglo-dominated district—suburban/rural

CD 6, which stretches two counties southward (Ellis and Navarro). At trial, Chairman Darby

agreed that Plan C235 places southeast Arlington in CD 6. See 7/14/17 Trial Tr. (Vol. 5) at 1584:4-

10.


16

See Quesada-2017-18 (blue box and circle added).6

Plan C235 CD 6’s CVAP is 60.9 percent Anglo, 19.0 percent African American, and 14.2

percent Hispanic. See JX-100.3 (Report Red-116, 2011-2015 ACS Data). Quesada Plaintiff John

Jenkins, an African-American registered voter, resides in this region of southeast Arlington in CD

6—a minority region that has twice been purposefully cracked from neighboring minority

communities. See Stipulation No. 2, ¶ 6, ECF No. 1445. The legislature knew that the D.C. Court

had concluded it was intentionally discriminatory to crack the fast-growing minority community

of southeast Arlington/Grand Prairie and place it into an Anglo-dominated district, yet it

reaffirmed its original decision to do so by discriminating against minority voters in this same

community again in Plan C235.7

Knowingly reenacting a statute containing the same characteristic just deemed

purposefully discriminatory by a federal court is about as potent an example of intentional

discrimination as exists. The legislature acts with knowledge of judicial decisions, Garrett, 449

at 677, and Chairman Darby acknowledged having read the D.C. Court’s Order, see 7/14/17 Trial

6 The circled area of both maps above is the southwest Fort Worth/Meadow Creek area—the other large minority population area that was cracked and included in Plan C185’s CD 33. As Commissioner Brooks testified at trial, Plan C235 actually worsened the cracking of this area by splitting it between two Anglo-dominated districts—CDs 6 and 12. See 7/13/17 Trial Tr. (Vol. 4) at 1223-24. 7 Defendants offered no defense at trial of the legislature’s decision to readopt the discriminatory cracking of southeast Arlington/Grand Prairie, and they do not offer one in their post-trial brief either. Instead, Defendants simply ignore this issue, remarkably claiming during closing argument that “the plaintiffs have not identified a deficiency that was found in the D.C. district Court’s Opinion, that was not cured by this Court’s interim plan.” 7/15/17 Trial Tr. (Vol. 6) at 1784. The absence of a cure for southeast Arlington/Grand Prairie could not have been more clearly illustrated in briefing and at trial; Defendants’ silence speaks volumes.


17

Tr. (Vol. 5) at 1559;8 when a legislature knowingly reenacts a purposefully discriminatory law, it

has engaged in an axiomatic example of discriminatory intent.9

C. The Legislature Applied a Discriminatory Rule to Reject Amendments Proposing Minority Coalition Districts Contrary to Fifth Circuit Precedent.

The legislature applied a discriminatory rule for considering amendments: minority

legislators and voters were denied the benefit of binding Fifth Circuit precedent endorsing coalition

districts under Section 2 of the VRA simply because the Supreme Court had not yet decided the

issue. That is not how the law works—unless the Supreme Court has held otherwise, the Fifth

Circuit’s rule is binding in Texas. The legislature was aware of the Fifth Circuit rule, yet it created

8 While the legislature is presumed under the law to be aware of the D.C. Court’s ruling, and Chairman Darby acknowledged reading it, Defendants admitted the legislature ignored the D.C. Court’s ruling in their interrogatory responses, identifying this Court’s interim orders as the only judicial opinions considered by the legislature in enacting Plan C235. See Quesada-2017-2 at 8 (Response to Interrogatory No. 11). 9 Defendants raise several meager objections to the relevance of the D.C. Court’s decision, but they are meritless. See id. at 1785. First, the fact that in the preclearance case Texas bore the burden to prove the absence of discriminatory intent is irrelevant. The court not only found the failure to disprove discriminatory intent, but actually affirmatively found the presence of such intent. In light of that finding, there is nothing about the burden of proof that altered the legislature’s subsequent obligation to remedy that violation in 2013. Second, Texas’s contention that the D.C. court exceeded its jurisdiction in finding discriminatory intent is both irrelevant and misplaced. It is irrelevant because that legal argument does nothing to erase the factual finding of intent—it happened, and Texas’s legal argument does not undermine the validity of the Court’s factual findings when it comes to considering the legislature’s intent in 2013. The Supreme Court never concluded the D.C. Court had acted outside its jurisdiction, and so the legislature could not have ignored a binding order based solely upon the Attorney General’s disagreement with that order. And Texas’s argument is misplaced because it is wrong; the D.C. Court acted within its jurisdiction. The court had jurisdiction to grant or deny preclearance, and preclearance must be denied when the legislature acts with a discriminatory purpose. See 52 U.S.C. § 10304(a)-(c). Making a fact finding about discriminatory purpose is precisely what the statute calls upon the court to do. Third, it is irrelevant that Texas sought to appeal the D.C. Court’s decision; the preclearance order was in full force and effect until June 27, 2013—a date after the legislature enacted, and the governor signed, S.B. 4, and the vacatur was not with respect to the factual findings. Texas does not get to ignore court orders simply because they have chosen to appeal them.


18

a unique burden for minority legislators and voters: they had to wait until the Supreme Court

decided the issue. This rule was the product of intentional discrimination against minorities.

As this Court has already recognized, “[t]he Fifth Circuit addressed this issue more than

twenty-five years ago and recognized that minority groups may be aggregated to meet the first

Gingles precondition.” ECF No. 1365 at 12; see LULAC v. Midland ISD, 812 F.2d 1494, 1500

(5th Cir. 1987), vacated on state law grounds, 829 F.2d 546 (5th Cir. 1987); Campos v. City of

Baytown, 840 F.2d 1240, 1244-45 (5th Cir. 1988). The Fifth Circuit “is a strict stare decisis court,”

Ballew v. Continental Airlines, Inc., 668 F.3d 777, 782 (5th Cir. 2012), and thus “Campos is

binding precedent,” and must be “follow[ed] . . . in the absence of authority to the contrary,” ECF

No. 1365 at 15.

The legislature knew that binding Fifth Circuit precedent endorsed the view that Section 2

of the VRA can require the formation of minority coalition districts. First, as a matter of law, the

legislature is presumed to be aware of relevant judicial decisions. See e.g., Garrett, 449 at 677;

DTND Sierra Investments LLC v. Bank of Am., N.A., 871 F. Supp. 2d 567, 575 (W.D. Tex. 2013)

(“The Legislature is presumed to know existing law when it enacts a statute.”). Second, the

evidence at trial showed that the legislative leadership knew as a matter of fact that the Fifth Circuit

rule required the formation of coalition districts. The files of Chairman Darby’s office contained

annotated notes highlighting (literally—with yellow highlighting, underlining, and an asterisk) the

fact that although the Supreme Court had not yet spoken, the Fifth Circuit required coalition

districts under Section 2 of the VRA:


19

Quesada-2017-91 at 2. And although he equivocated at first, Chairman Darby (who is a lawyer)

acknowledged at trial that the Fifth Circuit’s case law applied to Texas. See 7/14/17 Trial Tr. (Vol.

5) at 1577-78. When asked whether “[m]inority representatives who offered Section 2 coalition

districts had their plans voted down because there was no Supreme Court precedent requiring it,”

Chairman Darby responded “I think the record speaks for itself on what happened to the

amendments offered with regard to those matters.” Id. at 1578.

Indeed, it does. The record shows that Chairmen Darby and Seliger rigidly applied a rule

that minority coalition districts would not be permitted because they were not “legally required”

despite Fifth Circuit precedent to the contrary. When asked at trial whether “[d]uring the floor

debates [he] took the position that Texas was not required to create coalition districts,” Chairman

Darby testified that “I believe I stated that on the record,” and agreed that “no amendments with

Section 2 coalition districts were accepted by the House,” Id. at 1576; see also JX 17.3 at S41

(Chairman Darby, during floor debate: “It would be a coalition district . . . it’s not legally required

to assemble that district in that configuration”). Likewise, during the senate floor debate,

Chairman Seliger had the following exchange with Senator West:


20

WEST: Okay so, let me just make sure I understand. If, indeed, there was an amendment that allowed for minority underrepresented groups to elect a candidate of its choice, you would be supportive of that?

SELIGER: No, Sir, not necessarily. Not unless it is required by the law. JX 26.2 at A-10; see also JX 24.4 at § II, p. 4 (SEN. SELIGER: “Senator Garcia, with a great deal

of respect for your legal training and experience, is it your assertion that a coalition district, in

which no minority has over 50 percent, is compelled by the Voting Rights Act?”).

The Fourteenth Amendment guarantees “equal protection of the laws.” U.S. Const. amend.

XIV § 1. The legislature’s rule precluding minority coalition districts constituted a literal violation

of that guarantee by creating a system of unequal application of law: minority legislators and voters

were denied the benefit of circuit precedent merely because no Supreme Court case had decided

the question of coalition districts. That is not how the law is supposed to work—legal rights do not

only arise from Supreme Court precedent, and there was no such corollary rule for legislation

sponsored by non-minority legislators—whether in this special session or any other session. Cf.

Romer v. Evans, 517 U.S. 620, 633-34 (1996) (“A law declaring that it shall be more difficult for

one group of citizens than for all others to seek aid from the government is itself a denial of equal

protection of the laws in the most literal sense. The guaranty of equal protection of the laws is a

pledge of the protection of equal laws.” (internal quotation marks omitted)). This unequal rule of

law—and the legislature’s adherence to it despite knowing it contravened binding circuit

precedent—constituted intentional discrimination against minority legislators and voters.

D. The Legislature Acted with Discriminatory Intent in Rejecting an Alternative Plan that Would Remedy the Intentional Cracking of Minority Neighborhoods in DFW in Plan C235.

The legislature acted with discriminatory intent in rejecting an alternative plan that would

remedy the intentional cracking of minority voting strength in the DFW region. On June 14, 2013,

the Senate deliberated on passage of SB 4—the bill to enact Plan C235. At several points


21

throughout the day, Chairman Seliger debated with Sen. Royce West, an African-American senator

from Dallas who also served on the Senate Select Redistricting Committee.

Sen. West offered an amendment he explained was required by law to remedy the

intentional discrimination of cracking minority neighborhoods in DFW into adjoining Anglo

districts. That amendment, Floor Amendment 3, redrew only DFW-area districts and included a

third minority opportunity district to elect a candidate of choice of Hispanic voters. JX 26.2 at 33.

Sen. West explained that under Plan C235, suburban and rural districts “kind of dart into the urban

counties and take up that [minority] population.” Id. at 34; see id. (explaining that under Plan

C248, CD 33 would continue to elect African American candidate of choice because “we increase,

there were some stranded African Americans in one of the other contiguous districts, we’re taking

those in my map and putting in that particular district.”); id. at 37 (“[W]hat those districts are doing

that are contiguous to 33 and 30, they’re darting in, taking ethnic minority population that would

be of no political consequences to them because of the sheer numbers.”). Moreover, Sen. West

explained that it was necessary to remedy the cracking of minority voters in DFW because there

had been “a finding of intentional discrimination.” Id. at 36.10

Chairman Seliger urged the rejection of Sen. West’s amendment. His basis for doing so,

however, was an obviously pretextual use of the Voting Rights Act to avoid remedying the

intentional cracking and packing in DFW. Chairman Seliger contended that Sen. West’s

10 Sen. West and others had repeatedly requested the Senate hold a hearing in Dallas so the committee could address DFW-specific concerns. See, e.g., JX 29 at 16 (Letter from Sen. West); JX 21.4 at § I, p. 43; JX 24.4 at § II, p. 8; JX 26.2 at 5-6, 13-14. During the floor debate, Chairman Seliger responded that the House Committee held a hearing in Dallas, JX 26.2 at 13; Sen. West explained in response that it was a departure from regular process for the Senate to rely upon House hearings, id. Chairman Seliger commented that the House Dallas hearing transcript would be available for the Court to review in the future, id., but acknowledged he had not reviewed it in determining whether Plan C235’s DFW configuration was legal, id. at 14.


22

amendment would be retrogressive and in violation of the Section 5 of the VRA because it would

reduce CD 30’s African American population by 5.5 percent—“the very definition of retrogression

under Section 5.” Id. at 35-36.11

Sen. West then responded that Chairman Seliger was wrong in light of the “finding of

intentional discrimination.” Id. at 36. Chairman Seliger ignored that explanation, and reasserted

“[t]his appears to be the sort of retrogression that we must avoid, and yet you put it in your map.”

Id.; see id. (“Is retrogression okay if it’s proposed by you, but not okay if it’s proposed by me?”).

The senators then had this exchange:

WEST: Okay. Why do you think it’s retrogressive? SELIGER: Because, as I’ve said, it reduces the, what did I say, the Black citizen

voting age population in, from 46 point, I’m sorry, the Black voting age population from 46.4 to 41.8, and reduces the Black citizen voting age population from 53.5 to 48 percent.

WEST: Do you agree with me in a Section 5 analysis that you must go beyond mere population data to include such factors as minority voter registration, minority voter turnout, election history, and majority, minority-majority voting behaviors?

SELIGER: Ah, I am, I’m sorry, I neither agree or disagree but certainly agree that is your assertion. At the same time, I think there could be accusation that it’s retrogressive and, therefore, I must move to table the amendment.

WEST: And as you’re moving to table the amendment, I think that what Senator Watson said few minutes ago, this is, I won’t say it was preordained, I’ll say it’s been predetermined.

Id. at 37. There are a number of problems here, and they begin with Chairman Seliger’s

contradictory positions with respect to whether Plan C235 complied with the Voting Rights Act.

When initially asked by Sen. West whether he thought Plan C235 complied with Section 5,

Chairman Seliger responded “that, I think, is what’s going to be asserted by our attorneys. I make

11 Although Chairman Seliger does not specify that he is referring to CD 30, the Black VAP and CVAP figures he cites are those of CD 30, not CD 33. See JX 100.3.


23

no such assertion on my own.” JX 26.2 at 8; id. (SEN. WEST: Okay, so this bill does or does not

comport with current law, that’s all I’m asking”; SEN. SELIGER: “You’re asking for a legal

decision, and I don’t make those, Senator West. I’m not a lawyer.”).12 Chairman Seliger’s position

changed, however, when Sen. West introduced an amendment to remedy the purposefully

discriminatory cracking of minority populations identified by the D.C. Court. At that point,

Chairman Seliger quickly offered a legal opinion announcing what he claimed to be “the very

definition of retrogression under Section 5.” Id. at 35-36.

Importantly, Chairman Seliger’s definition of retrogression under the Voting Rights Act

was wrong, and the record indicates he knew that. First, two days prior, Sen. Garcia had explained,

in an exchange with Chairman Seliger, that the actual Section 5 test was not a bright-line

population determination. See JX 24.4 at § II, p. 3 (SEN. GARCIA: “The functional analysis, and

that’s the key here, the functional analysis established by the Department of Justice, and the

District Court in District of Columbia, makes clear . . . there is no bright (line) number for minority

opportunity.”). Second, Sen. West explained that to him again during their exchange on the Senate

floor. Third, this Court, in the very March 2012 Order on which Defendants purport to rely,

explicitly rejected Chairman Seliger’s professed definition of a simple numerical test for

measuring retrogression under Section 5. See ECF No. 691 at 7-8; Quesada-2017-85 at 7-8 (“The

D.C. Court held that the proper comparison is the minority group’s ability to elect under the

benchmark and enacted plans. The D.C. Court rejected Texas’s position that the standard for

12 Chairman Seliger’s professed ignorance is peculiar, in light of his insistence that the bill include legislative findings announcing the plan’s legality. When Sen. Zaffirini sought to strip the Legislative Findings from S.B. 4 regarding the professed legality of the map, Chairman Seliger exclaimed that “this amendment guts the bill and I oppose it, and think we should vote nay on the amendment,” JX 24.4 at § I, p. 13, and during the floor debate explained he agreed with the sentiment expressed in Section 2 of S.B. 4 that “these maps satisfy the requirements to be legal maps.” JX 26.2 at 26.


24

determining retrogressive effect should include an evaluation of voting population demographics

alone.” (emphasis in original)).

Fourth, the D.C. Court, in its final judgment denying preclearance—a case in which

Chairman Seliger was a witness and in which the opinion includes his name twenty-five times—

reiterated its rejection of this view of Section 5. See Texas, 887 F. Supp. 2d at 140; Quesada-2017-

74 at 6 (“As we explained in our summary judgment opinion, ensuring that a proposed plan will

not undo the gains minority voters have achieved in electoral power requires a multi-factored,

functional analysis. A single-factor inquiry, such as the test Texas proposed relying on racial and

ethnic population statistics alone, is inconsistent with precedent and too limited to provide an

accurate picture of the on-the-ground realities of voting power.”).13 Fifth, Mr. Archer had already

advised the legislature in 2011 that Section 5 was not a mathematical exercise, see Fact Findings,

ECF No. 1340 at 53-54, ¶ 96(F); see also id. at 430 ¶ 712 (mapdrawers in 2011 were of view that

“districts above 40% BVAP were treated as African-American districts rather than coalition

districts”), and David Hanna, on whom Chairman Seliger relies for advice in redistricting, id. at

43, ¶ 89, “encouraged election analysis because there are shortcomings in the demographic

analysis . . . one would want to conduct election analysis to determine whether a district was

performing or not,” id. at 432-33, ¶ 718. And sixth, the D.C. Court had already concluded that CD

30 in Plan C185 was packed and on that basis the product of purposeful discrimination. Quesada-

2017-74 at 126, ¶ 120; see also ECF No. 1340 at 251, ¶ 331. In the 2012 election, Congresswoman

13 Were there any remaining doubt on the point, the Supreme Court has subsequently agreed that the plain text of Section 5 requires a functional analysis. See Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1272 (2015) (“Section 5 . . . does not require a covered jurisdiction to maintain a particular numerical minority percentage. It requires the jurisdiction to maintain a minority’s ability to elect a preferred candidate of choice. That is precisely what the language of the statute says.”).


25

Eddie Bernice Johnson, CD 30’s representative, received 78.82 percent of the vote, a margin of

nearly 130,000 votes.14 In light of all of this, it is hard to believe that Chairman Seliger truly

thought Sen. West’s amendment, which reduced the African-American CVAP of CD 30 by 5.5

points to 48 percent, threatened the ability of African-American voters to elect their candidate of

choice. Defendants chose not to call Chairman Seliger to testify at trial.15

The legislative record reflects Chairman Seliger used a purposeful misunderstanding of

Section 5 as pretext to avoid remedying the intentional packing and cracking of minority voters in

DFW. If a legal mistake cannot support a racial gerrymander, see Cooper v. Harris, 137 S. Ct.

1455, 1472 (2017) (“But neither will we approve a racial gerrymander whose necessity is

supported by no evidence and whose raison d’être is a legal mistake.”), then a purposeful legal

mistake in the service of maintaining minority vote dilution surely qualifies as improper intentional

discrimination.

14 See Tex. Sec’y of State, Election Results, http://elections.sos.state.tx.us/elchist164_state.htm. 15 The D.C. Court questioned Chairman Seliger’s credibility in its decision denying preclearance. See Texas, 887 F. Supp. 2d at 200-01, ¶ 16; Quesada-2017-74 at 102-03 (“In his pre-filed written direct testimony, Chairman Seliger claimed that he relied on these experts to ‘inform me if the demographics, performance, or any other attribute of a proposed district would raise concerns under the Voting Rights Act. To the contrary, these experts testified before the Senate Redistricting Committee that they did not ‘provide[] verbal or written guidance or []opinion to the committee regarding whether [the proposed Congressional plans were] in compliance with Section 5’ because they were not asked to do so.” (internal citations omitted; alterations in original); id. ¶ 17 (“Chairman Seliger also admitted during the floor debate that the Senate Redistricting Committee Outside Experts he hired had not seen the Congressional Plan until it was released in committee and that these experts had not evaluated the plan for compliance with the VRA.”). Despite the D.C. Court’s finding in this regard and his contradictory floor statement, at his subsequent deposition, Chairman Seliger declined to acknowledge any “substantive” error in his testimony provided the D.C. Court. See ECF No. 1455-3 (K. Seliger Depo. Tr. at 103:8-104:2).


26

E. Application of the Arlington Heights Factors Demonstrates the Legislature Purposefully Discriminated in Enacting Plan C235.

The Arlington Heights factors support the conclusion that the legislature acted with

discriminatory intent in enacting Plan C235. “Determining whether invidious discriminatory

purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct

evidence of intent as may be available.” Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252, 266-68 (1977). The Arlington Heights Court identified several

factors useful in assessing discriminatory intent: 1) disparate impact of the action, 2) historical

background for invidious discrimination, 3) the sequence of events leading to the action, 4)

departures from the normal procedural sequence or substantive departures, and 5) the legislative

history, including contemporaneous statements. Id.; see also ECF No. 1390 at 113. As this Court

has recognized, “[c]onsideration of the Arlington Heights factors, when viewed in totality with the

entire record evidence, may support a finding of intentional racial discrimination, even where the

individual factors considered alone are not compelling.” ECF No. 1390 at 135.

i. Discriminatory Impact

Plan C235 has a discriminatory impact. In redistricting cases, courts look to the

proportionality—or lack thereof—as evidence of discriminatory impact. “[T]he law is clear that

‘the impact of the official action is often probative of why the action was taken in the first place

since people usually intend the natural consequences of their actions.” Id. at 137 (quoting Reno v.

Bossier Parish Sch. Dist., 520 U.S. 471, 488 (1997)). Therefore, “a jurisdiction that enacts a plan

having a dilutive impact is more likely to have acted with a discriminatory intent to dilute minority

voting strength than a jurisdiction whose plan has no such impact.” Id.

Dr. Lichtman testified as to Plan C235’s dilutive impact at trial. He explained that the 2008

to 2012 ACS data, which was available at the time the legislature enacted Plan C235, showed that


27

African Americans and Latinos constituted 39.5 percent of Texas’s citizen voting age population

(“CVAP”). 7/12/17 Trial Tr. (Vol. 3) at 927. On a proportional basis, Dr. Lichtman testified that

this would translate into 14 congressional districts in which minorities could elect their preferred

candidates. Id. He further testified that African American comprised 13 percent of the statewide

CVAP, or 4.7 districts, and Hispanics comprised 26.5 percent of the statewide CVAP, or 9.5

districts. Id. All minorities, Dr. Lichtman explained, were 43 percent of CVAP, or 15.5 districts,

while Anglos comprised 57 percent of statewide CVAP, or 20.5 districts. Id. at 927-28; see also

Quesada-2017-1 (Lichtman Report) at 5, ¶ 8.

Under Plan C235, Dr. Lichtman testified that there is a significant lack of proportionality.

Hispanics only have the opportunity to elect their preferred candidates in 7 districts—a

proportional underrepresentation of 2.5 districts. Id. at 928. African Americans have the

opportunity to elect their preferred candidates in 4 districts—a proportional underrepresentation

of .7 of a district. Id. And Anglos have an effective opportunity in 25 districts—an

overrepresentation of 4.5 districts. Id.; see also Quesada-2017-1 (Lichtman Report) at 6-7, ¶ 11.

Dr. Lichtman also concluded there was substantial disproportionality in the Dallas-Fort

Worth area particularly, with Hispanic and African American CVAP constituting 39.5 percent of

the two-county area, but with minority voters only able to elect their preferred candidates in 2 of

the 8 districts comprising significant parts of Dallas and Tarrant Counties. Id. at 935, 937. On the

other hand, Anglos have significant over-representation—controlling the outcomes in 6 of the 8

districts. Id. at 937. Moreover, Dr. Ansolabehere explained the numbers another way: 93 percent

of Anglo CVAP in Dallas and Tarrant Counties reside in the 6 white-controlled districts, while 55

percent of African Americans and Hispanics reside in the 2 minority-controlled districts. 7/13/17

Trial Tr. (Vol. 4) at 1095. Minority voters are dispersed into Anglo districts, while the same is not


28

true of Anglo voters. And as a visual inspection of the minority population in DFW shows, see,

e.g., Quesada-2017-16, this is not explainable by geographic dispersion of minority population—

to the contrary, the minority population in DFW is rather concentrated.

ii. Historical Background

This Court has already concluded that there is a significant past and recent historical

background of discrimination in Texas. See Findings of Fact, ECF No. 1340 at 439-41, ¶¶ 733-

41; Amended Order, ECF No. 1390 at 140-41. That conclusion related to the evidence prior to the

2011 enactment of Plan C185. As Dr. Lichtman testified at trial, that history of discrimination

continued unabated in the two years between that plan and the adoption of Plan C235 in 2013. As

the D.C. Court concluded in 2012, the 2011 congressional and state senate plans were enacted with

intentional discrimination. See 7/12/17 Trial Tr. (Vol. 3) at 939; Quesada-2017-74 at 38, 43.

Texas “stood alone among all the state in the union” to have any of its redistricting plans denied

preclearance. 7/12/17 Trial Tr. (Vol. 3) at 939 (testimony of Dr. Lichtman). In 2011, the Texas

legislature also enacted its voter identification law, which has also been found to have been passed

for a discriminatory purpose. Id. Likewise, the legislature sought to limit funding to cities that

prohibited police officers from inquiring about immigration status, and passed a measure

“requiring proof of citizenship for driver’s licenses.” Id. at 940; see also Quesada-2017-1

(Lichtman Report) at 20, 22.

The continued discrimination post-2011 has left its mark. As Dr. Lichtman testified,

education and income gaps between Anglos and minorities persist. These socioeconomic

characteristics matter because they “directly affect[] the ability of minorities to participate in the

political process and to elect candidates of their choice. Problems with education, health, income,

unemployment are a barrier to voter turnout. They affect the ability to recruit candidates, to finance


29

campaigns, and thus are – interact with any other discriminatory system to magnify the effects of

that discrimination.” Id. at 942. The data shows that since 2011, things “haven’t gotten better in

terms of these socioeconomic disparities. Sadly, if anything, they’ve gotten slightly worse.” Id.;

see also Quesada-2017-1 (Lichtman Report) at 21 ¶ 34, 56 (Table 8).

iii. Sequence of Events and Procedural and Substantive Deviations

The sequence of events leading to Plan C235’s enactment and the procedural and

substantive deviations from the norm indicate a discriminatory purpose behind S.B. 4. The

evidence shows that unlike normal legislation—and in particular redistricting legislation—the

Attorney General’s office developed the idea behind the legislation, its content, and its legislative

findings—all before a bill was written or a legislative hearing was held. The evidence shows this

effort had two goals: 1) to avoid the creation of any new minority opportunity districts and 2) to

evade responsibility for doing so by pretending to rely on this Court’s “legal advice” in its interim

Order. As discussed above, substantial direct evidence shows the legislature did not rely on this

Court’s Order and acted solely with the intent to minimize minority opportunity districts.

Nonetheless, the Court could infer as much from the significant circumstantial evidence of the

strange sequence of events and deviations from the norm, described below.

First, the idea and substance of S.B. 4 (along with the other two redistricting bills) was

developed in the Attorney General’s office, not the legislature. The record shows that Chairman

Darby did not introduce legislation to enact the interim plans until Speaker Joe Straus received a

letter, on March 8, 2013, from then-Attorney General Greg Abbott urging that course of action

during the regular session. See Quesada-2017-57 (March 8, 2017 Letter); 7/14/17 Trial Tr. (Vol.

4) at 1558 (testimony of Chairman Darby acknowledging legislation introduced same day letter

was received). Redistricting is generally a legislative function; it is not normal for the Attorney


30

General’s office to dictate the drawing of district lines. See 7/12/17 Trial Tr. (Vol. 3) at 948 (Dr.

Lichtman, testifying that “I have not in my experience found this to be a normal practice at all”).

Second, not only did the idea and substance of the legislation originate in the Attorney

General’s office, but so did the legislative findings that accompanied the bill. On March 7, 2017—

the day before the legislation was introduced, and well before any fact-finding hearing occurred—

the Attorney General’s office emailed Chairman Darby’s staff with the concept and draft language

for the legislative findings. See Quesada-2017-84. This is not normal procedure, as Chairman

Darby himself admitted at trial:

Q. And Mr. Clay advises Mr. Modglin that he should insert the statement of intent into the bill claiming that this Court had ruled that the interim maps “remedy any violation of the Voting Rights Act or U.S. Constitutions,” right?

A. That is the statement of the intent. Q. And so the statement of intent made it into the bill, right? A. I haven’t checked the exact language, but substantially all of that went into

the bill. Q. And you’re aware that the statement of intent was removed from the Senate

Bill, the one bill that everyone agreed was lawful? A. Correct. Q. Legislative findings are usually found by the legislature, aren’t they? A. Yes . . . .

7/14/17 Trial Tr. (Vol. 5) at 1558:5-20. Both the process and substance of these findings are a departure from the normal process.

As a procedural matter, as Chairman Darby acknowledged, it is abnormal for the Attorney General

to dictate to the legislature what its purpose and conclusions are. Id. It is all the more abnormal

for that to happen before legislation has even been introduced, and well before a legislative hearing

has occurred—the event at which one would expect the legislature to obtain information that would

inform and provide a basis for its legislative findings. Courts “need not in equal protection cases

accept at face value assertions of legislative purpose, when an examination of the legislative


31

scheme and its history demonstrates that the asserted purpose could not have been the goal of the

legislation.” Weinberger v. Wiesenfeld, 420 U.S. 636, 648 n.16 (1975). The Court should look

particularly askance here, where the legislature did not even develop the legislative findings, but

rather the Attorney General’s office did—in the context of ongoing litigation about racial

discrimination—prior to the bill’s introduction. Cf. Texas, 887 F. Supp. 2d at 224 (discussing

email between senate parliamentarian and David Hanna, in which parliamentarian “inquired about

pre-doing the committee report,”—a suggestion Mr. Hanna rejected as “[n]o bueno . . . [because]

RedAppl time stamps everything when it assigns a plan. Doing it Thursday would create a paper

trial that some amendments were not going to be considered at all. Don’t think that is good idea

for preclearance” (quotation marks and citation omitted)).

It is not just the odd process behind these findings, though. They also reflect a substantive

departure from the norm. TLC counsel David Hanna testified at a senate hearing that he was

unaware of such a finding being included in previous redistricting legislation. JX 24.4 at 11. When

Senator Zaffirini offered an amendment during a committee hearing to remove the legislative

findings from the three redistricting bills, Chairman Seliger adamantly objected, proclaiming that

“this amendment guts the bill and I oppose it, and think we should vote nay on the amendment,”

JX 24.4 at § I, p. 13. This statement suggests that the purpose of the legislation was to create a

litigation argument to evade liability for purposefully blocking the creation of additional minority

opportunity districts—how could an amendment that affects zero district lines “gut” the

legislation? When the amendment reached the senate floor, the senate agreed to strip the language

from the senate redistricting plan—the one plan everyone actually thought was lawful—yet

refused to eliminate the language from the other two bills that minority legislators contended were

unlawful. See 7/14/17 Trial Tr. (Vol. 5) at 1558 (testimony of Chairman Darby); JX 26.1 at 27.


32

When confronted with this oddity on the senate floor, Chairman Seliger explained only that

“[t]his amendment is different because it takes on a different context in this map.” JX 26.2 at 27.

The difference, of course, was the ongoing—and future—litigation. And the disparate treatment

of the bills, coupled with the process by which the findings were generated, strongly suggests they

were pretext for the litigation, and did not reflect any real conclusions of the legislature. See also

7/13/17 Trial Tr. (Vol. 3) at 944 (testimony of Dr. Lichtman that disparate treatment of findings in

three plans was “very, very odd and very indicative of what was going on with respect to intent”);

Quesada-2017-1 (Lichtman Report) at 31-32, ¶¶ 52-53. Of course, it is also significant that the

legislature rejected all amendments to Plan C235 offered by minority legislators, see Quesada-

2017-73 at 3 (Response to RFA No. 10)—amendments Mr. Archer told the legislature highlighted

the legal flaws and that, if rejected, could cause legal jeopardy, see JX 15.3 at 56, 58-59; 7/14/17

Trial Tr. (Vol. 5) at 1575 (Chairman Darby testimony).

Third, it was abnormal for redistricting legislation to be enacted during a special session,

rather than during the regular session. See 7/12/17 Trial Tr. (Vol. 3) at 943 (testimony of Dr.

Lichtman that “the adoption of something very significant—congressional redistricting plan,

affects the state, affects the nation—in a special session” “stands out here in terms of a procedural

deviation”). Special sessions are not common, but rather are to “respond to a particular crisis.”

Quesada-2017-1 (Lichtman Report) at 29 ¶ 49 (quoting University of Texas handbook on Texas

politics); Quesada-2017-48. As Dr. Lichtman explained, “[t]here certainly was no crisis or

particular problem regarding redistricting in May or June of 2013,” and the redistricting special

session was prioritized over a public policy issue for which the governor had declared a crisis—

transportation. 7/12/17 Trial Tr. (Vol. 3) at 943; Quesada-2017-1 (Lichtman Report) at 30-31 ¶

50. Moreover, the restrictive nature of the Governor’s Call for the special session was unusual.


33

See Quesada-2017-6. As Sen. Davis testified at the first Senate hearing of the special session, “[i]f

we are limited by the Call to end where we began, it seems to have created a false expectation that

the input would actually produce any sort of meaningful consideration in terms of the outcome.”

JX 20.4 at § I, p. 18. Even Chairman Darby lamented during the final floor debate, “keep in mind,

we’ve had a telescoped-down, if you will, process, and we’re trying to move this process within

the call that the governor issued to us.” JX 17.3 at 17. This is not the normal redistricting process.

Fourth, because redistricting was considered during a special session, the Senate did not

follow its normal rule of a blocker bill and a two-thirds requirement. See Veasey, 830 F.3d at 238

(identifying suspension of two-thirds rule as a procedural departure suggesting intentional

discrimination). The record indicates minority senators and members of the public repeatedly

complained about the lack of availability of the two-thirds rule in these proceedings. See, e.g., JX

19.3 at § II, p. 6 (expressing concern during the regular session of the possibility that the Senate

could “bypass our Two-Thirds Rule, the only real legislative protection that African-Americans

and Latino voters have in this process.); id. § II, p. 7 (Sen. Watson, testifying that “I could see

where a court . . . could look at the fact that a long-standing rule and tradition that protects and is

built to protect the minority, when it is circumvented is some evidence and it would be in my view

some evidence of purposeful efforts to discriminate”); JX 20.4 at § II, p. 3; JX 21.4 at 34; JX 26.2

at 24 (Chairman Seliger admitting that “if the regular rule that requires there to be, or tradition that

requires there to be a motion to suspend the rules in order to take up a bill . . . the Two-Thirds Rule

. . . [were followed,] those that represent over 60 percent of the Hispanic population and a majority

of the Black and Hispanic population would be in a position to prevent such a bill coming to the

floor if that tradition were being followed.”); 7/14/17 Trial Tr. (Vol. 5) at 1563 (testimony of

Chairman Darby acknowledging that two-thirds rule applied during the regular session, at which


34

point “Senate did not vote that bill,” but that rule was not applied in the special session). Indeed,

the record suggests that the interim plans were not adopted during the regular session precisely

because of the two-thirds rule:

WATSON: [D]uring the regular session of the Legislature, at that point in time, that bill was blocked from coming to the floor.

SELIGER: I’m not aware of a block or anything else. All I’m aware is, was, I was given a hearing in front of the State Affairs Committee, there was not a vote taken in the State Affairs Committee, and what went into that consideration I was not privy to.

WATSON: Oh, so you don’t know whether there was a block on the congressional map during the regular session of the Legislature?

SELIGER: No, I suspect you’d be the authority on that, but nobody said anything to me about it.

JX 26.2 at 22.

Similarly, the House declined to follow its ordinary process of employing a Calendar Rule

for the filing of amendments. See JX 17.3 at 12 (Rep. Martinez-Fischer noting to Rep. Darby that,

absent a Calendar Rule, “when we’re doing this on the floor in real time, we don’t know that the

map is as perfectly drawn as we might think it is. And so, I’m concerned about that. I’m troubled

that you don’t find it concerning”); id. at 15. Calendar Rules have normally been used in

redistricting in the House, see Findings of Fact, ECF No. 1340 at 57-59, ¶¶ 101-02, and Rep. Darby

has testified that when one is used, it requires amendments to be filed with 24 hours’ notice, to

allow the public and the members to understand its contents. See 7/14/17 Trial Tr. (Vol. 5) at

1548-49. This reflects the hurried process by which the redistricting legislation was passed.

Fifth, both Chairmen Darby’s and Seliger’s handling of legal advice and committee

technical resources was unusual and differed between minority and Anglo legislators. At the May

31, 2013 house committee hearing, Republican Rep. Villalba asked Chairman Darby to “elucidate

for us a little on some of the precedents” because, he said, “[i]f we meet certain test and standards,

procedures and protocols and we check the necessary boxes, that ultimately the exercise results in


35

a map or maps that meet the constitutional standards. So I would like to talk about those

standards.” JX 10.4 at 32. In response, Chairman Darby stated that he was not a redistricting

attorney and would not discuss those standards, but rather that “it is the intent of the Chair to

discuss hiring counsel that will advise this committee.” Id.

That was on May 31st. There was a hearing the next day, June 1st, but Chairman Darby

had nothing to say about obtaining committee counsel. See JX 11.4. A week later, however,

Chairman Darby announced at the June 6th hearing that TLC had retained legal counsel for him,

but that this counsel would not be shared with other committee members, an arrangement to which

minority legislators objected. JX 12.4 at 9-13. But evidence produced for the first time during the

course of trial—a draft script prepared by Chairman Darby—showed that he knew at least by June

1st that he, not the committee, was being provided legal counsel:

Quesada-2017-87.

At trial, Chairman Darby admitted that, in fact, he knew prior to June 1st of this

arrangement:

Q: [H]ad you obtained counsel by June 1st? A: Morrison and Guinn had signed a contract with leg. Council before June

1st. Q: And when did you become aware that they had signed that contract? A: I don’t recall specific time. Q: But it was prior to preparing this – A: Yes.


36

. . . Q You did not go on the public record to inform the committee until the June

6th hearing, right? A: I can’t recall specifically, but I don’t think I informed the committee till

June 6. 7/14/17 Trial Tr. (Vol. 5) at 1568-69. So two committee hearings passed—including the one at

which he claimed to be seeking to hire committee counsel—before the committee was informed

what Chairman Darby already knew: he had sought his own counsel, not counsel for the

committee. Cf. Amended Order at 144, ECF No. 1390 (noting that misleading comments by then-

Chairman Solomons to his minority colleagues was evidence of discriminatory intent).

At the subsequent hearing on June 10th, Rep. Darby reported that those attorneys had

“asked . . . to be allowed to withdraw their counsel” of him, JX 13.4 at 4-5, and that with respect

to legal counsel for the committee going forward, “those resources are best found at the Texas

Legislative Coun[cil],” id. at 5. At the same hearing, Chairman Darby confirmed his refusal to

seek testimony or advice for the committee from the Attorney General’s office, JX 13.4 at 67, and

finally at the June 12th hearing, Chairman Darby announced that Mr. Archer was available as a

resource witness to provide counsel. JX 14.4 at 6.

During the House floor debate, Chairman Darby confirmed that he refused to ask the

Attorney General or his staff to come before the Committee, but that the Attorney General’s staff

had, that day, met with the Republican caucus exclusively. JX 17.3 at 37-41. He then had the

following exchange with Reps. Davis and Chris Turner:

Y. DAVIS: That’s not my question either. My question is, do you think it would have been of value to the select committee to have heard from the attorney general as a committee in terms of what the concerns the state has to consider? Would you think that would’ve been—

DARBY: I think that would have been helpful. C. TURNER: To follow up on Representative Davis’s questioning just now, I

understand that you didn’t ask the attorney general to come and appear before the committee. Did the attorney general’s office,


37

however, make itself available as a resource witness before the committee?

DARBY: Not that I’m aware of. C. TURNER: Isn’t it typical that when an agency is going to be impacted or

involved in proposed legislation, that an agency typically sends representatives to be available as a resource should the committee have questions?

DARBY: Correct, but we’re— C. TURNER: That didn’t happen in— DARBY: That did not happen.

JX 17.3 at S35.

In the Senate, Chairman Seliger refused to answer questions about whether “Committee

counsel and the Attorney General” advised him about the legality of Plan C235, despite

acknowledging that the Committee counsel of which he spoke, Mr. Heath, was “counsel to the

Committee, individually and collectively,” when Sen. Watson suggested the committee members’

attorney-client relationship with Mr. Heath precluded Chairman Seliger from claiming privilege.

JX 26.2 at 8, 21.

None of this is normal. And taken together and applied against the Arlington Heights

factors, the evidence demonstrates a clear and discriminatory purpose behind the 2013 redistricting

legislation: to prevent minorities from gaining any further ability to elect their preferred

candidates.16

16 The statements of Chairmen Seliger and Darby highlighted throughout this brief also demonstrate the final Arlington Heights—contemporaneous statements of members of the legislative body—suggest intentional discrimination. As another example, while he was attending a hearing, Chairman Seliger chose to make fun of members of the public testifying before the committee: “In redistricting hearing. One witness said gerrymandering started in 2008, another in 2003. Moon landing was faked.” Quesada-2017-58.


38

II. As a Matter of Law, the Discriminatory Intent Present in 2011 Infects the Offending Characteristics of Plan C185 that Plan C235 Retained.

Even if the legislative record for the 2013 special session were not replete with independent

evidence of intentional discrimination (which it is), the discriminatory purpose that motivated the

2011 plan persists, as a matter of law, with respect to the offending provisions carried over into

Plan C235. Discriminatory purpose can exist both in the original enactment of legislation and

when the legislature “reaffirms” a law motivated by discrimination. Personnel Administrator of

Mass. v. Feeney, 442 U.S. 256, 279 (1979). And once a court determines that a state actor has

engaged in purposeful discrimination, “the racial discrimination [must] be eliminated root and

branch.” Green v. Cnty. Sch. Bd., 391 U.S. 430, 437-39 (1968). In City of Port Arthur v. United

States, 459 U.S. 159, 168 (1982), the Supreme Court affirmed the invalidation, pursuant to Section

5 of the VRA, of both a purposefully discriminatory redistricting plan and the city’s later-enacted

remedial plan as a “reasonable hedge against the possibility that the [remedial] scheme contained

a purposefully discriminatory element.” Thus, a subsequent enactment can retain the original

law’s discriminatory purpose even after its “more blatant discriminatory” portions are removed.

Hunter v. Underwood, 471 U.S. 222, 232-33 (1985); see also United States v. Fordice, 505 U.S.

717, 733-35 (1992) (holding that “facially neutral” education policy did not remove the

“discriminatory taint” of prior policy mandating segregated higher education system and that state

“may not leave in place policies rooted in its prior officially segregated system”). Moreover, the

law requires that victims of discrimination be placed in “the position they would have occupied in

the absence of discrimination,” United States v. Virginia, 518 U.S. 515, 547 (1996) (quotation

marks omitted). That right is not lessened simply because the number of victims of purposeful

discrimination is reduced in the later enactment.


39

This rule is consistent with “the ‘well settled’ rule that ‘a defendant’s voluntary cessation

of a challenged practice does not deprive a federal court of its power to determine the legality of

the practice’” because “‘repeal of the objectionable language would not preclude it from reenacting

precisely the same provision if the District Court’s judgment were vacated.’” Northeastern Fla.

Chapter of the Assoc. Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662 (1993)

(quoting City of Mesquite v. Alladin’s Castle, Inc., 455 U.S. 283, 289 (1982)). In City of

Jacksonville, that principle was all the more relevant because “[t]here is no mere risk that

Jacksonville will repeat its allegedly wrongful conduct; it has already done so.” Id. (emphasis

added). “Nor does it matter that the new ordinance differs in certain respects from the old one.

City of Mesquite does not stand for the proposition that it is only the possibility that the selfsame

statute will be enacted that prevents a case from being moot. . . . The new ordinance may

disadvantage [petitioners] to a lesser degree than the old one, . . . [but] it disadvantages them in

the same fundamental way.” Id. (emphasis in original). The same is true here. And if a repealed

law can still be challenged and enjoined because of the threat it will be reenacted in whole or part,

it would make scant sense to preclude a court from probing the original law’s intent when the law

actually is reenacted and is challenged. The law does not permit a state to evade liability for

discrimination by attempting to bifurcate its discriminatory intent and the discriminatory effects

of its legislation into two successive enactments. Rather, to remove the discriminatory taint of a

prior enactment, a subsequent legislature must engage in a “deliberative process” and ensure that

the new statute does not continue the same discriminatory effects. See Johnson v. Governor of

State of Fla., 405 F.3d 1214, 1224-26 (11th Cir. 2005); Cotton v. Fordice, 157 F.3d 388, 391 (5th

Cir. 1998). That did not happen here.


40

Although Defendants rest their case on the fact this Court originally imposed the interim

plan, Rep. Villalba admitted that the Supreme Court’s Perez decision meant “that these maps were

predicated upon previous maps that did have deficiencies.” JX 15.3 at 49. Those deficiencies

were later detailed by the D.C. Court and deemed to be purposefully discriminatory, and yet were

reenacted in the same discriminatory fashion by the legislature—fully advised by its counsel and

by the plain text of the judicial decisions that doing so would yield new claims of intentional

discrimination. As Dr. Lichtman shows in his report, much of the cracking this Court found with

respect to the 2011 Plan carried forward into Plan C235:

Quesada-2017-1 (Lichtman Report) at 61, Map 5; see also supra Part I.B (regarding southeast

Arlington/Grand Prairie); 7/13/17 Trial Tr. (Vol. 4) at 1095 (Ansolabehere testimony that 95% of

Anglos reside in Anglo-controlled DFW districts, while only 55% of minorities reside in minority-

controlled districts); id. at 1098-99 (Ansolabehere testimony regarding splits in Irving and Grand

Prairie); id. at 1100-01 (Ansolabehere testimony regarding cracking in Arlington); id. at 1104-05,

1197 (Ansolabehere testimony regarding cracking of Meadowbrook); id. at 1105 (Ansolabehere


41

testimony regarding cracking of Como); id. at 1114 (Ansolabehere testimony that compactness

score for CD 33 demonstrates cracking).

Tens of thousands of Texas minority voters remain the victims of intentional discrimination

because of the legislature’s knowing failure to remedy the purposeful discrimination that two

federal courts have explicitly identified. The law imputes the 2011 legislature’s discriminatory

intent onto the 2013 legislature for knowingly reaffirming Plan C185’s discriminatory features.

III. The Legislature’s Intentional Discrimination Had its Intended Effect.

The legislature’s intentional discrimination with respect to Plan C235 had its intended

effect. No new minority opportunity districts were created to correct the cracking and packing in

DFW that remains from the 2011 plan, CDs 27 and 35 are unchanged, and CD 23 remains shy of

a true Hispanic opportunity district. And this harms minorities. This Court has already concluded

that minority voters experience discriminatory effects by being placed in Anglo districts. See Fact

Findings, ECF No. 1340 at 249-50, ¶¶ 324-26; 443 ¶ 712. That fact was confirmed again at trial.

Tarrant County Commissioner Roy Brooks, whose commissioner precinct overlaps with four

congressional districts (CDs 6, 12, 25, and 33), testified about the importance of members of

Congress to him and his constituents. See 7/13/17 Trial Tr. (Vol. 4) at 1221. In particular,

Commissioner Brooks testified that his constituents—many of whom are minorities—are affected

by “[h]ealthcare issues like Medicaid, Medicare and CHP, veterans health services, Community

Development Block Grants, which is a HUD program for redevelopment of central city areas and

a lot others.” Id. at 221. He explained the importance of these issues to minorities, and the problem

with them being cracked into Anglo-controlled congressional districts:

Q. And in your experience, are these issues important to your minority constituents?

A. Yes. Q. Why is that?


42

A. Because by and large minorities depend more on governmental supports than the community at-large.

Q: And have you been able to convince the members of Congress from your commissioner precinct to support these measures?

A: Congressman Veasey certainly does. Q: And what about the other members? A: We – I have a friendly and cordial relationship with all of them, but they

tend to vote with the Republican leadership of the Congress, and that leadership vote is contrary to the issues of my community. Friendship is not the issue. It’s the vote that counts.

Id. at 1222. Representative Rose likewise testified that “it’s best to be represented by a

congressional member who ha[s] the same interest that you have” and that her office would be

contacted by constituents who lived in Anglo Republican congressional districts on immigration

issues because those congressman “would not be able to assist them or be responsive, I should say,

to their issues.” 7/13/17 Trial Tr. (Vol. 4) at 1313; id. at 1314 (Rep. Rose testifying that NAACP

report card reflects responsiveness of members of Congress to constituents’ needs); see also

Quesada-2017-61 (Congressman Kenny Marchant (R, CD 24) explaining that immigration reform

“is very unpopular in my district . . . [t]he Republican primary voters, they’re being pretty vocal

with me on this subject, [and] . . . if you give the legal right to vote to 10 Hispanics in my district,

seven to eight of them are going to vote Democrat”).

IV. Section 2’s “Results” Prong Requires the Formation of an Additional Minority Coalition District in DFW.

This Court can and should conclude that, as a matter of fact, the legislature intentionally

discriminated in 2013 by packing and cracking minority voters in DFW to dilute their votes. It

should remedy that injury by creating what is a naturally occurring minority opportunity district

in DFW, such as CD 3 in the Quesada Plaintiffs’ demonstrative plan C273. Regardless, however,

Section 2 of the VRA independently requires the creation of such a coalition district to prevent

discriminatory results.


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First, under the first prong of the Gingles test, the Quesada Plaintiffs have demonstrated

that a geographically compact minority population can form the majority of the population in a

second Dallas County based districts, such as CD 3 in the Quesada Plaintiffs’ demonstrative plan.

This is shown both by the overall compactness of the proposed district, as well as the compactness

of the minority population within the proposed district:

JX 101.1; Quesada-2017-19 (orange shading equals minority population of 70-100%, light orange

60-69.9%, and green 50-59.9%). In the Quesada Plaintiffs’ Demonstrative Plan C273, CD 3 has

a Hispanic CVAP of 38.4% and an African American CVAP of 19.6%, with a combined

Hispanic/African American CVAP of 58%. JX 101.3. CD 3 in Plan C273 is also compact—its

rubber band score is .611, which would rank more compact than 12 of the current districts in Plan

C235, and the district’s Perimeter to Area score is .140, which would rank more compact than 11

of the current districts in Plan C235. Compare JX 101.10 with 100.10.17

17 The creation of CD 3 in Plan C273 creates minimal disruption to other DFW districts, but those changes make many of the neighboring districts more compact than in Plan C235. For example, CD 30’s rubber band score improves from .760 to .770, and its Perimeter to Area score improves from .180 to .229. CD 33’s rubber band score improves from .430 to .556, and its Perimeter to Area score improves from .045 to .108. CD 32’s rubber band score improves from .617 to .705, and its Perimeter to Area score improves from .125 to .240. CD 6’s rubber band score improves


44

The Quesada Plaintiffs’ Demonstrative Plan C273 also ensures that other traditional

redistricting criteria are respected, particularly as compared to Plan C235. See Abrams v. Johnson,

521 U.S. 74, 92 (1997) (noting that Section 2 “compactness inquiry should take into account

traditional districting principles such as maintaining communities of interest and traditional

boundaries.” (quotation marks omitted)). For example, under Quesada Demonstration Plan C273,

the communities of South Irving and Grand Prairie in Dallas County are united in CD 3, whereas

these communities are split among CDs 24, 30, and 33 under Plan C235, with South Irving being

in the same congressional district—CD 24—as Hebron in Collin County:

Plan C235 Plan C273

Compare DX 887 at 6 (Plan C235 in DFW) with DX 888 at 7 (Plan C273 in DFW). Defendants’

own witness on the issue of communities of interest in Dallas County, Elizabeth Alvarez-Bingham,

testified that as far as communities of interest go, South Irving has more in common with Grand

Prairie than it does with Collin County. See ECF No. 1514-2 at 11 (E. Alvarez-Bingham Depo.

from .764 to .806, and its Perimeter to Area score improves from .215 to .246. Compare JX 100.10 with JX 101.10.


45

Tr. at 144:8-17) (Q: “With respect to South Irving, . . . in your view, does South Irving have more

in common in terms of communities of interest as you’ve defined it today, with Grand Prairie or

with Collin County?” A: “Grand Prairie. . . .”).

Moreover, under Plan C273, CD 33, which is represented by Congressman Marc Veasey,

is moved entirely into Tarrant County, whereas it currently spans significant portions of both

Tarrant and Dallas Counties. In doing so, Plan C273 unites the cracked minority communities of

Tarrant County, for example by taking in the Southeast Arlington/Grand Prairie area of Tarrant

County, Meadowbrook (which currently is excised from CD 33 by the sharp knife-like intrusion

from CD 6 shown below), Southwest Fort Worth/Meadow Creek, and Como:

Plan C235 Plan C273

Compare DX 887 at 4 (Plan C235 in Tarrant Co.) with DX 888 at 5 (Plan C273 in Tarrant Co.);

see also 7/13/17 Trial Tr. (Vol 4) at 1104-05 (Ansolabehere testimony regarding communities of

interest of Como and Meadowbrook); id. at 1223-24 (Brooks testimony regarding Southwest Fort

Worth/Meadow Creek). Based on the compactness scores and respect for traditional redistricting

principles, such as communities of interest, Quesada Demonstration Plan C273 shows that the new

minority coalition district, CD 3, satisfies the first Gingles prong.


46

Second, under the second Gingles prong, the Quesada Plaintiffs have demonstrated that the

Hispanic and African American voters in proposed CD 3 are “politically cohesive.” Thornburg v.

Gingles, 478 U.S. 30, 51 (1986); see 7/13/17 Trial Tr. (Vol. 4) at 1201 (Ansolabehere testimony

that black and Hispanic voters in current CD 33 “vote cohesively in the general elections in these

areas to elect their preferred candidates”); see Rodriguez Ex. 2017-955 (Ansolabehere Report) at

62 (Table 9) (showing that in Dallas County, in past three statewide elections, 100% of African

Americans and 68.4-81.7% of Hispanics voted for Democratic candidate, while 22.4-38.8% of

Anglo voters did). In Texas, voting is racially polarized, and Hispanic and African American

voters prefer Democratic candidates while Anglo voters prefer Republican candidates, Fact

Findings, ECF No. 1340 at 420 ¶ 688, 421-24 ¶¶ 691-95, 428 ¶ 708, demonstrating political

cohesion between African American and Hispanic voters, id. at 417, ¶¶ 681-82, 418 ¶ 684.

Defendants contend that African Americans and Hispanics are not cohesive, because in

two Democratic primary elections (2012 and 2016) in CD 33, Hispanic primary voters preferred

the Hispanic candidate, while African American primary voters preferred the African American

candidate. This single-minded focus on these two primary elections is misplaced. As this Court

has already concluded, general election results are significantly more instructive on the issue of

minority political cohesion than are primary elections. See Fact Findings, ECF No. 1340 at 427-

28 ¶¶ 700-02. Indeed, this Court has found that in particular with respect to Dallas and Tarrant

Counties. Id. ¶ 701 (“In Harris, Dallas, and Tarrant Counties, the turnout patterns, number of

contested elections, and comparative competitiveness in outcomes show that the general election

is the critical contest.”). At trial, the reason this is so became clear. As Defendants’ expert Dr.

Alford admitted, in CD 33, the general election turnout ranged from 28.2% in 2014 to 53.6% in

2016, while the Democratic primary turnout ranged from 1.3% in 2014 to 8.6% in 2016. 7/14/17


47

Trial Tr. (Vol. 5) at 1454. In terms of actual numbers of voters, that translated into 12,410 Hispanic

voters in the 2014 Democratic primary in CD 33, and 46,358 Hispanic voters in the 2014 general

election. Id. at 1456-57. In the 2016 CD 33 primary, 8,328 of 12,400 Hispanics who turned out

voted for the Hispanic candidate, Mr. Quintanilla. Id. at 1458. In the 2016 general election, 38,756

of 46,358 Latinos voted for Marc Veasey. Id. at 1459; see also Fact Findings, ECF No. 1340 at

250 ¶ 329 (noting that “home factor” contributes to primary election results in CD 33, given

Veasey’s residence in Tarrant County and opponents’ residence in Dallas County). As Dr. Alford

acknowledged, the number of Hispanics who chose to vote for the African American candidate in

the general election far surpasses the number that even turned out for the primary:

Q: Dr. Alford, then, based on the document that we just reviewed, more than three times as many Latinos chose to turn out in support of Marc Veasey in 2016 general election than even turned out in the 2016 primary, is that correct?

A: That sounds right. Q: So it’s hardly the case that Latinos are walking away from the electoral

process after their first choice candidate loses the primary, is that correct? A: That’s correct. Q: They’re coming out in far greater numbers to support Marc Veasey in the

general election; is that correct? A: That’s correct. Q: And they’re joining with large numbers of black voters to support Marc

Veasey in the general election; is that correct? A: That’s correct.

Id. at 1460.

Indeed, even if Congressman Veasey was the second choice for those 8,328 Hispanics in

2016, that means that he was the first—and only—choice of over 30,000 Hispanics in 2016. They

were so cohesive in their support with African Americans that they were not even compelled to

register a vote in the primary. So the 2016 data actually shows that Marc Veasey was the first and

only choice of 65.6% of Hispanic voters, the second choice of 17.9% of Hispanic voters, and not

the choice of 16.4% of Hispanic voters. And from that, Defendants somehow contend Hispanic


48

and African Americans are not politically cohesive in Dallas and Tarrant Counties. That makes

absolutely no sense.18

Moreover, the Gingles prong two test is about political cohesion. The most important data

point on that score is which party’s primary African Americans and Hispanics select. There is no

dispute that they cohesively select the Democratic primary, and the Democratic candidate in the

general election. Dr. Alford admitted as much at trial, acknowledging that “one way for minorities

to show that they are politically cohesive is to coalesce around a major political party.” 7/14/17

Trial Tr. (Vol. 5) at 1443. The evidence in this case shows that African American and Hispanic

voters in DFW are politically cohesive, both in their choice of political parties, but also in their

choice of candidates.

Third, the evidence shows that in the portions of newly proposed CD 3 in Quesada

Demonstration Plan C273 that are not currently represented by either Eddie Bernice Johnson (CD

30) or Marc Veasey (CD 33), white bloc voting usually prevents minorities from electing their

candidates of choice. For example, 22.2% of the population in CD 3 under Quesada Demonstration

Plan C273 comes from Plan C235’s CD 24. See DX 900. CD 24 is represented by Anglo

Republican Congressman Kenny Marchant, and an ecological regression analysis of voting

patterns in CD 24 shows that in 2016, Congressman Marchant’s Democratic opponent received

100% of the African American vote and 68% of the Hispanic vote, yet only 23% of the Anglo

vote. See Rodriguez-2017-955 (Ansolabehere Report) at 58 (Table 6). Whites thus voted as a

bloc, 77% for Congressman Marchant, to defeat minorities’ candidate of choice. The same was

true in the 2014 race; 82% of whites voted for Mr. Marchant. Id. Mr. Marchant won with 56%

18 This illogical conclusion is explained somewhat by Dr. Alford’s admission that he did not even analyze general elections—his conclusion regarding the lack of cohesiveness was based solely on primary elections in CD 33. Id. at 1448.


49

of the total vote in 2016 and 65% of the total vote in 2014. Id. at 57 (Table 5). The 2016 and 2012

presidential elections in CD 24 showed the same pattern. In 2016, the Democratic candidate

received 30% of the Anglo vote in CD 24, 100% of the African American vote, and 72% of the

Hispanic vote. Id. at 59 (Table 7A). Yet the Democratic candidate only received 47% of the total

two-party vote. Id. at 55 (Table 3). In 2012, only 18% of Anglos in CD 24 voted for the

Democratic candidate—82% voted for the Republican candidate. Id. And the pattern was the

same for governor and senator in 2014—70% of Anglos in CD 24 voted for the Republican

candidate for governor in 2014 and 82% voted for the Republican candidate for senator in 2014.

Id. at 60 (Table 7B). In fact, in every election studied, the white bloc in CD 24 prevented the

minorities’ preferred candidate from prevailing. The average victory percentage for statewide

Republican candidates in CD 24 from 2010-2016 was 58%. Id. at 55 (Table 3). Thus, for the

portion of proposed CD 3 in Quesada Demonstration Plan C237 that are not currently represented

by a minority candidate of choice, prong 3 of Gingles is established—whites usually vote as a bloc

to prevent minorities’ preferred candidate from being elected.

Defendants contend that party, not race, is the reason for racial polarization in Texas, and

therefore prong three of Gingles is not met because the racial polarization is not “legally

significant.” They are wrong, both on the law and the facts. First, as the Supreme Court has

explained, “under the ‘results test’ of § 2, only the correlation between race of voter and selection

of certain candidates, not the causes of the correlation, matters.” Gingles, 478 U.S. at 63 (plurality

opinion); see id. at 100 (O’Connor, J., concurring) (agreeing with plurality that cause other than

race may not be offered). Indeed, the Court specifically rejected the argument that “racially

polarized voting refers to voting patterns that are in some way caused by race, rather than to voting

patterns that are merely correlated with race of the voter . . . [because] the reasons black and white


50

voters vote differently have no relevance to the central inquiry of § 2.” Id. (emphases in original).19

Second, as Dr. Alford admitted at trial, “it is possible for a person’s decision to choose a certain

political affiliation or for certain partisan affiliations to be motivated by his or her race” and “it’s

possible that a person would choose a political party that he believes to endorse policies more

favorable to members of his racial group.” Id. at 1444-45. As the Supreme Court explained in

Gingles, this is not even the proper analysis for prong three. Nonetheless, the evidence at trial

supports the conclusion that in Texas, minorities support Democratic candidates because of their

race. As Commissioner Brooks testified, issues like Medicaid and Medicare funding, veterans’

health services, and urban economic development are important to minorities “[b]ecause by and

large minorities depend more on governmental supports than the community at-large,” and

Congressman Veasey supports these measures while Republican members of Congress in DFW

do not. See, e.g., 7/13/17 Trial Tr. (Vol. 4) at 1221-22. That support is because of the substantive

issues, not the name of the party associated with the candidate espousing the views favorable to

minorities. African American and Hispanic voters’ support for Democratic candidates is thus

attributable to their race, not some partisan concerns untethered to their race. The evidence

demonstrates that Gingles prong three is satisfied for proposed CD 3in Quesada Demonstration

Plan C273.

19 Defendants rely upon the Fifth Circuit’s decision in LULAC v. Clements, 999 F.2d 831, 849-59 (5th Cir. 1993) (en banc) for this proposition. See Quesada-2017-73 at 3 (Response to Interrogatory No. 1). The Fifth Circuit’s analysis, however, is in direct conflict with the Supreme Court’s admonition in Gingles, and for that reason has been rejected by the other circuits. See, e.g., United States v. Charleston Cty, S.C., 365 F.3d 341, 348 (4th Cir. 2004) (noting that LULAC decision was contrary to Gingles and other circuits’ holdings). It is notable that Defendants rely upon Fifth Circuit precedent when it is directly contradicted by binding Supreme Court precedent, yet refuse to adhere to Fifth Circuit precedent on coalition districts when there is no contrary Supreme Court precedent. See supra Part I.C.


51

Finally, the evidence shows that under the totality of the circumstances, there is a Section

2 right for a coalition district such as proposed CD 3 in Quesada Demonstration Plan C273. As

this Court has already concluded:

A searching practical evaluation of “past and present reality” and a functional view of the political processes indicates that the political processes are not equally open to Hispanics. Texas’s history of official discrimination touching on the right of Hispanics to register, vote, and otherwise to participate in the democratic process is well documented . . . . Similarly, as discussed, the evidence indicates that Latinos bear the effects of past discrimination in areas such as education and employment/income, which hinder their ability to participate effectively in the political process.

Amended Order, ECF No. 1390 at 54. The updated evidence shows the same continues to be true

for African American and Hispanic voters. As Dr. Lichtman testified, the evidence shows that

with respect to education and employment/income, the gap between Anglos and minorities has

actually gotten worse since 2011. See 7/12/17 Trial Tr. (Vol. 3) at 942; Quesada-2017-1 (Lichtman

Report) at 21 ¶ 34, 56 (Table 8). The history of voting related discrimination has worsened since

2011—two federal courts have found the State to have purposefully discriminated in

redistricting—and particularly in the DFW area—and another has concluded that the State

purposefully discriminated in enacting a voter ID bill. The en banc Fifth Circuit found evidence

to support that ruling, and concluded the law had discriminatory effects. See Veasey, 830 F.3d at

234-35. And racial appeals in political campaigns have worsened. As Dr. Murray testified, the

current president targeted Americans of Mexican descent, including a federal judge, throughout

his presidential campaign. See 7/13/17 Trial Tr. (Vol. 4) at 1256-57. Defendants’ own witness,

Elizabeth Alvarez-Bingham, agreed that the president made overt and subtle racial appeals during

his campaign about Mexican immigrants and Judge Curiel. ECF No. 1514-2 at 18 (E. Alvarez-

Bingham Depo. Tr. at 204-05).


52

Under the totality of the circumstances, there is a Section 2 right for an additional minority

opportunity district in DFW, such as proposed CD 3 in Quesada Demonstration Plan C273

* * * *

The 2013 special session had a singular purpose: to prevent minorities from electing their

candidates of choice, and to use this Court’s interim Order as pretext to avoid legal liability for

doing so. The facts show that the legislature knew this Court’s interim Order did not provide the

necessary support for Plan C235, that the legislature knew that specific flaws identified by the

D.C. Court had not been remedied, that the legislature knew alternative plans proposed by minority

legislators illustrated Plan C235’s legal flaws, and that the legislature knew binding law required

it to consider the creation of coalition districts. The State’s entire case rests on a counterfactual,

pretextual litigation position. This Court should make that crystal clear in its findings of fact so

this pretext does not prevail on review. Texas’s attempt to cloak itself in the protection of a

presumption of constitutionality, see 7/15/17 Trial Tr. (Vol. 6) at 1784, soundly fails in light of the

facts of the case. See Parham v. Hughes, 441 U.S. 347, 351 (1979) (“The presumption is not

present when a State has enacted legislation whose purpose or effect is to create classes based upon

racial criteria . . . .”). The time has come to put to bed this latest unfortunate chapter of purposeful

discrimination in Texas.

CONCLUSION

The Court should find the entirety of Plan C235, and DFW in particular, to be the product

of intentional discrimination in violation of the Fourteenth Amendment and Section 2 of the VRA,

and that Section 2 requires creation of a third minority opportunity district in DFW.


53

Dated: July 31, 2017

Respectfully submitted,

J. GERALD HEBERT (admitted pro hac vice) J. Gerald Hebert P.C. 191 Somervelle Street, #405 Alexandria, VA 22305 703-628-4673 [email protected] /s/ Mark P. Gaber MARK P. GABER (admitted pro hac vice) 1316 13th St. NW, #1 Washington, DC 20005 (715) 482-4066 [email protected] GERALD H GOLDSTEIN (No. 08101000) Goldstein, Goldstein and Hilley 310 S. St. Mary’s Street San Antonio, TX 78205-4605 210-226-1463/210-226-8367 (facsimile) [email protected] DONALD H. FLANARY, III (No. 24045877) Flanary Law Firm 1005 South Alamo San Antonio, TX 78210 210-738-8383/210-738-9426 (facsimile) [email protected] JESSICA RING AMUNSON (admitted pro hac vice) Jenner & Block LLP 1099 New York Ave. NW, Ste. 900 Washington, DC 20001 202-639-6000/202-639-6066 (facsimile) [email protected] JESSE GAINES P.O. Box 50093 Fort Worth, TX 76105 817-714-9988 Attorneys for the Quesada Plaintiffs


54

CERTIFICATE OF SERVICE

I hereby certify that on this 31st day of July, 2017, I served a copy of the foregoing on

counsel of record via the Court’s CM/ECF system.

.

/s/ Mark P. Gaber MARK P. GABER


1

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

SHANNON PEREZ, et al., Plaintiffs, v. GREG ABBOTT, et al., Defendants.

CIVIL ACTION NO. SA-11-CA-360-OLG-JES-XR [Lead Case]

APPENDIX: QUESADA PLAINTIFFS ANSWERS TO CERTAIN QUESTIONS

[ECF NO. 1494] POSED BY THREE-JUDGE PANEL

The Quesada Plaintiffs address below a number of the questions posed by the Court on

July 14, 2017. See ECF No. 1494. The Quesada Plaintiffs do not necessarily repeat the answers

to all questions adequately addressed in the post-trial brief, but rather select those questions that

seem most relevant to their legal claims and for which a specific answer seems most helpful.

1) In its previous orders, the Court identified certain violations in Plans C185 and H283 in districts that remain unchanged in Plans C235 and H358. With respect to these violations, what open questions are there, if any?

None. In Plan C235, CDs 27 and 35 contain the exact same population as in Plan C185.

See Stipulation of Facts No. 1 at 11, ¶¶ 7-8, ECF No. 1442. The Court concluded CD 27 in Plan

C185 violated both the intent and results prongs of Section 2, and that CD 35 was a Shaw violation.

The intent and purpose of the drawing of CDs 27 and 35 is not eliminated merely because they

were reenacted by the next legislature unchanged. See, e.g., United States v. Fordice, 505 U.S.

717, 733-35 (1992) (legislature may not leave in place policy rooted in discrimination). Moreover,

there can be no contention that the Section 2 results violation with respect to CD 27 is altered by

the subsequent reenactment.

Case 5:11-cv-00360-OLG-JES-XR Document 1527-1 Filed 07/31/17 Page 1 of 13

2

2) Much of the plaintiffs’ presentation looks more like the remedial phase than the trial on the 2013 plans. What decisions and rulings does this panel need to make regarding the 2013 plans? If the Court finds discriminatory intent, what judgment should it enter? If it finds no discriminatory intent, what judgment should it enter? What other issues are joined and ready for decision on this phase?

Plan C235 was enacted with discriminatory intent, as demonstrated in the Quesada

Plaintiffs’ post-trial brief and the evidence presented at trial. This discrimination exists

independently from, and in addition to, the discriminatory intent this Court has already found with

respect to Plan C185. See Post-Trial Brief Part I. The Court should enter judgment permanently

enjoining further use of Plan C235. This is so both statewide, and with respect to DFW districts

in particular. Any period for the legislature to enact a new plan should be short in duration (the

legislature has already rejected invitations to enact new legislation), and the Court should conduct

its own remedial proceedings, i.e., reviewing parties’ map submissions or appointing a special

master, concurrent with the period of time allotted the legislature to enact a new plan.

In addition, the discriminatory intent this Court found with respect to Plan C185 carries

forward, as a matter of law, to those discriminatory aspects that persisted in Plan C235, e.g., the

cracking of minority populations in DFW, illustrated in the Quesada Plaintiffs’ post-trial brief in

Parts I.B and II. Plan C235 should be permanently enjoined on that basis as well.

Finally, as explained in the brief, the results prong of Section 2 requires the formation of

an additional minority opportunity district in Dallas County. Although a remedy for the intentional

packing and cracking in DFW will achieve the same result, Section 2 provides an additional basis

for this result.

3) Defendants appear to be asserting that any time a minority opportunity district’s minority population is increased (one example was with regard to CD28 in a Gingles demonstration map) that this is unlawful “packing.” But is there anything inherently wrong with a district having an increased or high minority population if it reflects the


3

demographics of the area, does not have the effect of dilution, and wasn’t intentionally racially gerrymandered?

No. “Packing” is not a legal violation; vote dilution is. Packing and cracking are two ways

vote dilution can be achieved. If the intent or the effect of the districting at issue is not vote dilution

(e.g., if the high minority population in the district does not prevent the formation of an additional

neighboring districts where minorities can elect their candidates of choice, or does not preclude

the natural formation of such districts over the course of the decade in light of predicted minority

population growth) or race did not predominate in the decision of whom to include within and

without the district, then there is nothing inherently wrong in a district having a high minority

population.

7) Several witnesses relied on the rulings of the DC court, which were vacated. To what extent, if at all, can those findings be considered in determining the intent of the 2013 Legislature?

S.B. 4, which enacted Plan C235, passed in the senate on June 14, 2013, and in the house

on June 21, 2013. It was signed by the governor on June 26, 2013. At all relevant times, the D.C.

court’s decision denying preclearance, and finding that Plan C185 was the product of intentional

discrimination, was in full force and effect—the D.C. court’s judgment was not vacated until June

27, 2013. See Texas v. United States, 133 S. Ct. 2885 (U.S. June 27, 2013). The subsequent

vacatur has no bearing on the legislature’s intent at the time S.B. 4 was enacted. Nor would it even

if the timeline were different—the vacatur had nothing to do with the D.C. Court’s fact findings

regarding intentional discrimination.

During closing argument, Judge Smith asked about the burden of proof in the D.C.

proceeding, and whether that had an effect on the weight the decision should be afforded in this

case. It does not. The D.C. court found that the evidence demonstrated intentional discrimination,

not that Texas had merely failed to disprove the presence of discriminatory intent. During closing,


4

counsel for Defendants contended that the state had appealed the D.C. court’s decision, and that

the D.C. court had lacked jurisdiction to find the presence of intentional discrimination. These

arguments are misplaced. First, as discussed above, the D.C. court’s decision was in full force and

effect; court decisions under appeal are nonetheless binding. Second, the D.C. court acted within

its jurisdiction in finding the presence of intentional discrimination. The court had jurisdiction to

grant or deny preclearance, and Section 5 specifically requires preclearance be denied where the

legislature acts with a discriminatory purpose. See 52 U.S.C. §10304(a)-(c). The fact that Texas’s

burden was to show there was no discriminatory purpose does not strip the court of jurisdiction to

conclude there was discriminatory purpose. If that’s what the facts show, then the court can make

that fact finding in exercising its jurisdiction to deny preclearance. In any event, even if Texas

were right, the Supreme Court had not said so when the legislature enacted Plan C235 (nor did it

thereafter). And even if it had, the legislature would still have been aware that a court found the

presence of discriminatory intent, and would be obligated not to act in the same manner again.

8) What does the law say about whether the Legislature’s discriminatory intent can be inferred from its adoption of the Court’s interim 2013 plans? Some of the plaintiffs’ presentation appears to criticize the Legislature for refusing to consider amendments [to] the Court’s plan, while other parts of the presentation appear to criticize legislators and staff for even considering changes to the Court’s plans. Which is the correct analysis under the law?

First, the premise of the question does not account for the fact that the interim plan was not

drawn by the Court, but rather the Court accepted a compromise plan, originally Plan C226 (which

had only minor technical corrections and then became Plan C235) that had been negotiated among

defendants and a few plaintiffs (over the objections of, among others, the Quesada Plaintiffs).

Second, the record shows independent discriminatory intent again in 2013, separate and

apart from the 2011 intent, as explained in Part I of the Quesada Plaintiffs’ post-trial brief. As a

matter of fact, the legislature did not think it could rely upon this Court’s interim order, and thus


5

it is factually incorrect to conclude that the legislature based its adoption of Plan C235 on this

Court’s interim order. The Court can and should find independent discriminatory intent in 2013.

It should also find, as a matter of law, that Plan C235 is infirm because it retains discriminatory

aspects of Plan C185. See Part II of Quesada Plaintiffs’ post-trial brief.

Third, application of the Arlington Heights factors demonstrates that the legislature acted

with intentional discrimination in 2013.

With respect to amendments, the record shows that no substantive amendments were

accepted, and in particular no amendments by minority legislators to Plan C235 were accepted.

That is circumstantial evidence of discriminatory intent. That several non-substantive

amendments were enacted to the state house plan does not change that.

9) How does the intent or statement or action of a legislator or staff relate to the intent of the Legislature as a whole? Does it depend at all on whether other legislators, and/or the body as a whole, was aware of the individual intent or action?

See answer to No. 10, below. 10) If the Legislature allowed individual members or staff members to draw districts,

why shouldn’t any discriminatory intent or effect be attributed to the Legislature as a whole?

It should be. It is important to understand the unique nature of redistricting legislation.

Where legislation deals with a general policy decision—such as zoning regulations and public

housing eligibility rules—the whole body may be involved in crafting the legislation or at least

may have read the bill text and have formed individualized intent as to the particulars of the

legislation. Cf. Hunter v. Underwood, 471 U.S. 222, 228 (1985) (noting that proving

discriminatory motivation for large legislative bodies can be difficult). Redistricting is different

than such general policymaking—it involves technical and complex line drawing and decision-

making, usually by a small subset of legislators, staff, or consultants. The legislative text is


6

reference to a map number, whose backup is a long list of census block numbers. Under such

circumstances, the appropriate focus in determining legislative intent is not a diffuse analysis of

each legislator or the whole body, but rather an examination of the intent of those who actually

drew the lines. That is the approach the Supreme Court has approved. See Cooper v. Harris, 137

S. Ct. 1455, 1466 (2017) (noting that two redistricting chairs and a consultant drew the maps, and

the “General Assembly adopted the scheme the three men proposed”); id. at 1468-69 (examining

intent based upon actions of three “mapmakers”); Alabama Legislative Black Caucus v. Alabama,

135 S. Ct. 1257, 1271 (2015) (“The legislators in charge of creating the redistricting plan believed,

and told their technical adviser, that a primary redistricting goal was to maintain existing racial

percentages in each majority-minority district, insofar as feasible.”); see ECF No. 1515-1 at 11 (C.

Turner Dep. Tr. at 155:20-156:6) (“[T]he reason the amendment was not adopted is that Chairman

Darby did not accept the amendment. You know, as author of the bill, if he says the amendment

is acceptable, nine times out of ten, it’s going to go on the bill, whether it’s redistricting or anything

else. If he says it’s not acceptable, then it goes to a vote, and on redistricting it ends up being a

partisan vote and therefore it doesn’t pass.”).

Moreover, even if the intent of the legislature as a whole was to achieve partisan goals, if

those actually responsible for drawing the lines used race as a tool to achieve partisan ends, that is

improper racial discrimination and should be imputed to the legislature as a whole. See Cooper,

137 S. Ct. at 1473 n.7 (“[T]he sorting of voters on the grounds of their race remains suspect even

if race is meant to function as a proxy for other (including political) characteristics.”); North

Carolina State Conf. of NAACP v. McCrory, 831 F.3d 204, 233 (4th Cir. 2016) (“It did so by

targeting voters who, based on race, were unlikely to vote for the majority party. Even if done for

partisan ends, that constituted racial discrimination.”).


7

Finally, under Arlington Heights, the Court’s task is not necessarily to ascertain whether

individual legislators acted with improper intent. Rather, presence Arlington Heights factors can

satisfactorily demonstrate the presence of discriminatory intent. That is particularly so here, where

they work together with direct evidence to do so.

11) How are minority priorities (such as, without limitation, immigration, healthcare, education) to be distinguished from priorities of the Democratic Party for purposes of attributing discriminatory intent to the Legislature, and also for purposes of identifying racial cohesion and shared communities of interest?

First, the question asks about “racial cohesion”—but that is not the proper inquiry. The

Gingles test focuses on political cohesion, and the fact that African American and Hispanics have

both chosen the Democratic party supports a finding of political cohesion.

Second, the premise of the question seems to assume that minorities are Democrats because

of the name of the political party and not because of the issue positions. That is not so. As the

evidence at trial showed, the reason minorities prefer Democrats is because Democrats adopt

positions on issues important to minorities—positions that in many cases stem directly from their

status as minorities. For example, the evidence at trial shows that the top policy concerns of

minorities stem from the socioeconomic disparities they face as a result of their status as minorities.

Commissioner Brooks testified that his minority constituents have priorities such as access to

government-funded medical services and urban development funding “[b]ecause by and large

minorities depend more on governmental supports than the community at-large.” 7/13/17 Trial

Tr. (Vol. 4) at 1221-22. That is so, as this Court has recognized, because of a long history of

discrimination, which results in reduced income and education that persists to this day. See Fact

Findings, ECF NO. 1340 at 439-42, ¶¶ 735-39; Quesada-2017-1 (Lichtman Report) at 56, Table 8

(showing worsening income and educational disparities for minorities from 2011-2015).


8

Minorities therefore do not support access to government-funded healthcare because they

are loyal Democrats. They are economically disadvantaged because of centuries of discrimination

and need access to affordable healthcare. If the parties switched views on healthcare, minorities

would switch parties. Likewise, minorities do not support immigration reform because of the

Democratic Party platform—they support it because it intimately affects their and their families’

lives. If tomorrow the Democratic Party of Texas announced it favored a border wall and the

indiscriminate arrest of undocumented immigrants, and the Republican Party came out opposed to

the border wall and against the indiscriminate arrest of undocumented immigrants, minority

partisan preference would undoubtedly change. Our history tells us this—African Americans used

to support the Republican party prior to the execution of the Southern Strategy.

To conclude otherwise would seriously undermine the VRA and the constitutional

protection against discrimination. It cannot be the case that those protections disappeared once the

political parties became polarized around issues important to minorities.

13) The Court’s opinion adopting the interim maps clearly stated that the Court’s work product was not complete and additional analysis was necessary. Didn’t the Legislature have some duty to ensure that the Plans they voted on complied with the VRA and Constitution?

Yes, it did, both as a matter of fact and as a matter of law. It had a duty as a matter of fact

because this Court told the legislature in its interim order its analysis was not final and because

Mr. Archer pointedly explained that fact to the legislature. It had a duty as a matter of law because

there were judicial findings of intentional discrimination that were not fixed by Plan C235. Where

a prior system is the result of discriminatory purpose, its remaining vestiges must be eliminated

through a “deliberative process.” See Johnson v. Governor of State of Fla., 405 F.3d 1214, 1224-

26 (11th Cir. 2005); Cotton v. Fordice, 157 F.3d 388, 391 (5th Cir. 1998).


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14) For the Congressional Plan, can the fact that no amendments were accepted from minority members during the 2013 special session be evidence of discrimination if also no amendments were accepted from non-minority Democrats?

The record reflects that the only amendments to Plan C235 that were rejected were those

offered by minority members. During closing argument, the only exception offered by Defendants

was an amendment offered by Anglo Democrat Senator Watson, but as counsel for Defendants

noted, the legislature never voted on that proposal because it was withdrawn. See 7/15/17 Trial

Tr. (Vol. 6) at 1792-93. Where the only substantive amendments that were actually rejected were

those of minorities, that remains evidence of discriminatory intent. The salience of that fact cannot

be eliminated simply because Anglos did not offer amendments that received votes (particularly

where the majority party as a rule did not offer any amendments whatsoever to permit a

comparison).

15) Was there evidence that non-minority members requested substantive amendments?

See answer to No. 14.

17) To what extent, if at all, is it appropriate for those who draw demonstration maps to use racial shading to make small changes to lines within precincts?

Examples of appropriate use of racial shading include to demonstrate that Gingles prong 1

can be satisfied and to demonstrate that intentional vote dilution through cracking and packing can

be remedied.

19) Is there data in the record (or on the Secretary of State’s website) reflecting the actual number of voters in specific primary elections? If the number of voters is very small, how does it meaningfully inform our decision on cohesion of the populations in the district as a whole, and why should we consider it in determining minority cohesion?

Primary election results for 1992 to present are available on the Secretary of State’s

Website. See http://elections.sos.state.tx.us/index.htm. Primary elections are of limited value in

determining whether Section 2 coalition districts must be formed because 1) the proper test is of


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“political cohesion,” which is better informed by the choice of party primary, rather than the choice

of candidates within that primary, and 2) turnout is exceedingly low in primaries. As discussed in

the Quesada Plaintiffs’ post-trial brief, see pp. 46-68, the evidence shows that general election

results are far more important for ascertaining political cohesion, even when primary election

results are included in the analysis.

Primary election results are useful for ascertaining the performance of a district in

determining the extent to which legitimate state legislative choices must be respected when

imposing a remedial map. For example, the evidence, including primary turnout and results,

demonstrates that CD 33 is a performing African American opportunity district; African

Americans are able to nominate their preferred candidate, Marc Veasey, and together with

Hispanic voters, cohesively elect him in general elections. See, e.g., 7/12/17 Trial Tr. (Vol. 3) at

957-59 (testimony of Dr. Lichtman). The legislature’s choice to have an African American

performing district in Tarrant County was legitimate and should be respected in the event a

remedial map is drawn, with necessary changes in order to remedy the intentional vote dilutive

cracking in areas around current CD-33—changes that naturally (or by virtue of the Section 2

results test) lead to the formation of an additional minority opportunity district in Dallas County.

See White v. Weiser, 412 US. 783, 795-96 (1973).

28) If CD33 is currently performing as a minority opportunity district, why would the Court make any changes to that district?

CD 33 is performing as an African American opportunity district. 7/12/17 Trial Tr. (Vol.

3) at 957-59 (testimony of Dr. Lichtman); Quesada-2017-1 (Lichtman Report) at 10-11. The

legislature’s choice to place an African American opportunity district in Tarrant County,

represented by a member of Congress from Tarrant County, was legitimate. The problem is not

with CD 33 in a vacuum, but rather the fact that substantial minority population outside CD 33


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(and CD 30) remained fractured and stranded in Anglo-dominated districts. The Quesada

Plaintiffs’ Demonstrative Plan C273 proves that this retained cracking—which was done

intentionally—is vote dilutive; an additional minority opportunity district can be formed by

remedying this cracking. See JX 101.1; 7/12/17 Trial Tr. (Vol. 3) at 954-55 (Lichtman testimony),

Therefore, changes in DFW must be made to correct this constitutional and VRA violation. But

those changes can properly be made in a way that respects the legislature’s legitimate decisions to

have African American opportunity districts in Tarrant County (CD 33) and Dallas County (CD

30). See White, 412 U.S. at 795-96.

29) Assuming the Court finds packing in CD30, how should the Court take account of and respect the Section 2 rights of those who are removed, assuming they are moved into a district in which they cannot elect the candidate of their choice?

It is important to understand that the legal violation is vote dilution; packing is the way that

improper result is achieved. Vote dilution occurs where packing (or cracking) causes a reduction

in the number of minority opportunity districts—i.e., in the absence of the packing (or cracking),

an additional minority opportunity district could be formed—or where it prevents such a district

from forming over the course of the subsequent decade in light of predicted minority population

growth.

The packing in CD 30, and the cracking in the areas surrounding CD 30 and CD 33, prevent

a third minority opportunity district from forming in Dallas County. See, e.g., JX 101.1 (CD 3 in

Quesada Demonstrative Plan C273). Therefore, in order to redress the actual legal violation (the

vote dilutive prevention of another minority opportunity district being formed), voters who are

moved out of CD 30 to unpack it must generally be moved into a new minority opportunity district.

This is the only way to redress the legal violation. Importantly, CD 30 cannot be unpacked by

generally moving minority voters into a neighboring Anglo-dominated district. To do so would


12

be to multiply the improper vote dilution by cracking those voters and continuing to prevent the

formation of an additional minority opportunity district. Vote dilution exists—and must be

remedied—where the cracking and packing reduces the number of minority opportunity districts.

Defendants appeared to contend at trial that it would be improper to move African

American voters from CD 30 into CD 3 in Quesada Demonstrative Plan C273—presumably based

upon their supposition that those voters had chosen Congresswoman Eddie Bernice Johnson in CD

30 based upon her race, and the data shows a Hispanic candidate is likely to prevail in proposed

CD 3. See, e.g., 7/12/17 Trial Tr. (Vol. 3) at 979-80. This argument is misplaced. Defendants are

wrong to suggest the individual voters must be polled to determine whether they would prefer to

be placed in districts likely to elect African American or Hispanic candidates. See id. at 980 (Q:

“And you haven’t talked to any of those African American voters to see how they would feel about

moving into a Hispanic opportunity district?” A: “No.”). As this Court explains in Question No.

34, “Section 2 precedent seems to make clear that a minority candidate of choice doesn’t need to

be of the same race or ethnicity as the voters that elected him or her.” And the evidence shows

that Hispanics and African Americans are politically cohesive in Texas, and in DFW in particular.

The Constitution and the VRA require that changes be made to CDs 30 and 33, to the extent

necessary, to remedy the improper vote dilution in DFW. That can and should be done while

respecting the legislature’s generally legitimate choice to have African American performing

districts (CDs 30 and 33).

*For Question Nos. 33-35, please see post-trial brief at Part IV, and response to Question No. 19 above. 38) How, if at all, do we account for the distribution of populations across the entire state

in evaluating proportionality? For that matter, is it even appropriate or required for the Court to consider proportionality for the limited purposes of this trial on the 2013 plans?


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Proportionality is relevant to intent, and that relevance is not lessened because this trial is

about the 2013 plans. One might view it as less important, given that intentional discrimination is

easily established here through other evidence—for example, the legislature declined to correct

specific violations identified as purposefully discriminatory by the D.C. Court. But it is

nonetheless relevant, as it always is in these cases.

In theory, the distribution of minority population across the State—if in fact that population

were uniquely dispersed—might lessen the importance of proportionality as a consideration. But

as the Quesada Demonstration Plan C273 demonstrates, a plan with far less disparity can be drawn,

which shows that geographic distribution does not explain the disparity in Plan C235. See 7/12/17

Trial Tr. (Vol. 3) at 933 (Lichtman testimony) (“[I]f you find . . . a substantial gap between the

seats based on proportionality and the actual number of seats in which various groups have the

opportunity or ability to elect candidates of their choice. That’s a pretty loud alarm bell, and that’s

particularly the case when, in fact, there are reasonable means that were not taken or even

considered to remedy the disproportion and expand opportunities for minority voters in the state.”).

42) What caselaw informs whether the 2017 findings on intent for the 2011 plans can be used, in whole or in part, to find intent for the 2013 plans?

This question is addressed, and the caselaw cited, in Part II of the post-trial brief. But the

legislature’s improper intent in 2013 is not merely an issue of carry-over from 2011—as Part I

demonstrates, there was independent purposeful discrimination in 2013. But together, it is clear

that these violations must be remedied.


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